American Immigration Visa Kits, Inc. v. Su

Background

American Immigration Visa Kits, Inc., doing business as Visa Kits, assists U.S. employers with recruiting noncitizen workers and navigating employment-based immigration procedures. The case concerned the Department of Labor’s process for issuing prevailing wage determinations, which establish the wage an employer must offer and pay a proposed noncitizen employee. A prevailing wage determination is an early step in the permanent labor-certification process.

Visa Kits alleged that the Department’s processing times had increased substantially and that the Department was not following its stated commitment to process requests within 30 days. The amended complaint alleged that delays discouraged employers from pursuing noncitizen-worker recruitment, caused Visa Kits to lose potential clients and revenue, delayed its compensation, and created uncertainty because requests were allegedly not processed in a rational order. Visa Kits sought declaratory and injunctive relief requiring the Department to issue prevailing wage determinations within 30 days.

Motion to Dismiss

The Department moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim. The Department argued under Rule 12(b)(1) that Visa Kits lacked standing because it had not alleged a particularized injury fairly traceable to the Department’s conduct. It separately argued under Rule 12(b)(6) that the Administrative Procedure Act permits challenges to discrete agency actions, not the broad programmatic challenge Visa Kits presented.

The court considered the Rule 12(b)(1) issue first. To establish standing under the Constitution, a plaintiff must show an actual or imminent injury that is concrete and particularized, a connection between that injury and the defendant’s conduct, and a likelihood that the requested court relief would remedy the injury.

Standing Analysis

The court held that Visa Kits had not adequately alleged a concrete and particularized injury. Although financial loss can qualify as an injury, the amended complaint did not identify a specific instance in which Visa Kits lost income to which it was otherwise entitled because of a particular prevailing wage delay. The allegations that Visa Kits had lost several potential employer clients, was not paid until a determination issued, and was generally harmed by the Department’s process were considered generalized and conclusory.

The court also rejected Visa Kits’s description of a March 2025 telephone consultation with an unidentified franchisee of a major fast-food restaurant with 16 units in Ohio. According to the complaint, the prospective client ended the call after learning about prevailing wage processing times. The court found that this preliminary sales interaction did not establish a definite and imminent lost business opportunity.

Visa Kits also alleged harm to employers, noncitizen workers, school districts, and the national economy. The court held that alleged harm to other entities or to the public generally could not establish standing for Visa Kits without a concrete injury to Visa Kits itself.

Disposition

The court granted the Department’s Rule 12(b)(1) motion for lack of subject-matter jurisdiction and dismissed the action without prejudice. The court did not reach the Department’s Rule 12(b)(6) argument. The order stated that the dismissal was without prejudice to Visa Kits’s right to file a new lawsuit properly alleging subject-matter jurisdiction, and directed the Clerk of Court to terminate the pending motions and close the case.