ETSY, Inc. v. Jaddou

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ETSY, INC., and RACHANA KUMAR, Plaintiffs, v. UR MENDOZA JADDOU, Director, U.S. Citizenship and Immigration Services, Defendant.

No. 4:22CV3022

United States District Court, D. Nebraska

May 25, 2023

MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS COUNT I

Brian C. Buescher United States District Judge

This case is before the Court on the Motion to Dismiss by defendant Ur M. Jaddou, Director, United States Citizenship and Immigration Services (USCIS), seeking dismissal of Count I of Plaintiffs' Amended Complaint. Filing 31. The challenged count alleges that the so-called “Kazarian Policy Memorandum”-concerning determination by USCIS of I-140 petitions for visas for persons with “extraordinary abilities”-“is the sub-regulatory adoption of a failed proposed legislative rule in violation of the [Administrative Procedure Act (APA)] and [the Immigration and Nationality Act (INA)].” Filing 30 at 14 (subtitle to Count I). Defendant contends that this count fails to state a claim on which relief can be granted where courts have held that the policy in question is not a “legislative” rule, so it was properly adopted without “notice and comment.” Defendant also contends that this claim is untimely. Thus, Defendant seeks dismissal of this claim pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure. For the reasons set out below, Defendant's Motion to Dismissal is granted.

I. INTRODUCTION

The narrow focus of Defendant's Motion is whether USCIS complied with the APA in promulgating an administrative policy memorandum, which is a question of law. See United States v. Hacker, 565 F.3d 522, 524 (8th Cir. 2009) (stating in dicta that challenges to procedural compliance under the APA present “a question of law which we review de novo”), abrogated on other grounds by Bond v. United States, 564 U.S. 211 (2011)). Thus, the pertinent background relates to that policy memorandum rather than to Plaintiffs' efforts to secure an “extraordinary abilities” visa for plaintiff Rachana Kumar.

A. Background

1.The Statutory and Regulatory Bases for “Extraordinary Ability” Visas

The preference allocation for employment-based immigrants is established by statute. See 8 U.S.C. § 1153(b). One such preference category is “aliens with extraordinary ability.” 8 U.S.C. § 1153(b)(1)(A). The statutory qualifications for aliens with extraordinary ability are the following:

(A) Aliens with extraordinary ability

An alien is described in this subparagraph if--

(i) the alien has extraordinary ability in the sciences arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,

(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and

(iii) the alien's entry into the United States will substantially benefit prospectively the United States.

8 U.S.C. § 1153(b)(1)(A).

The pertinent regulation implementing this statutory category of visas provides that “[a]n alien, or any person on behalf of an alien,” may petition for classification as an “alien of extraordinary ability” by filing an I-140 visa petition. 8 C.F.R. § 204.5(h)(1). It then defines “extraordinary ability” for purposes of the regulation to mean “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” Id. at (h)(2). The next subdivision of the regulation provides as follows:

(3) Initial evidence. A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, international recognized award), or at least three of the following [ten listed achievements.]

8 C.F.R. § 204.5(h)(3).^[1] There is a caveat that “[i]f the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.” Id. at (h)(4). Finally, as pertinent here, the regulation states,

(5) No offer of employment required. Neither an offer for employment in the United States nor a labor certification is required for this classification; however, the petition must be accompanied by clear evidence that the alien is coming to the United States to continue work in the area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the United States.

8 C.F.R. § 204.5(h)(5).

2.The “Kazarian Policy Memorandum”

On December 22, 2010, USCIS issued a Policy Memorandum, PM-602-0005.1, with the stated subject, “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14” (the Kazarian Policy Memorandum). Filing 30-1 at 1. The stated purpose of the Kazarian Policy Memorandum was as follows:

This Policy Memorandum (PM) provides guidance regarding the analysis that U.S. Citizenship and Immigration Service (USCIS) officers who adjudicate these petitions should use when evaluating evidence submitted in support of Form I-140, Immigrant Petition for Alien Worker, filed for:

• Aliens of Extraordinary Ability under section 203(b)(1)(A) of the Immigration and Nationality Act (INA);

• Outstanding Professors or Researchers under section 203(b)(1)(B) INA; and

• Aliens of Exceptional Ability under section 203(b)(2) INA.

The purpose of this PM is to ensure that USCIS processes Form I-140 petitions filed under these employment-based immigrant classifications with a consistent standard.

Filing 30-1 at 1.

Three paragraphs of the agency's explanation of the background to this Policy Memorandum are particularly pertinent here:

In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the Administrative Appeals Office's (AAO) dismissal of a petitioner's appeal of a denial of a petition filed under 203(b)(1)(A) of the INA. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although affirming the decision, the Ninth Circuit found that the AAO erred in its evaluation of the initial evidence submitted with the petition pursuant to 8 CFR 204.5(h)(3). Specifically, the Ninth Circuit concluded that while USCIS may have raised legitimate concerns about the significance of the evidence submitted, those concerns should have been raised in a subsequent “final merits determination” of whether the petitioner has the requisite extraordinary ability. Id. at 1122. The Ninth Circuit further stated that the concerns were “not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence.” Id. at 1121.

USCIS agrees with the Kazarian court's two-part adjudicative approach to evaluating evidence submitted in connection with petitions for aliens of extraordinary ability: (1) Determine whether the petitioner or self-petitioner has submitted the required evidence that meets the parameters for each type of evidence listed at 8 CFR 204.5(h)(3); and (2) Determine whether the evidence submitted is sufficient to demonstrate that the beneficiary or self-petitioner meets the required high level of expertise for the extraordinary ability immigrant classification during a final merits determination. By contrast, the approach taken by USCIS officers in Kazarian collapsed these two parts and evaluated the evidence at the beginning stage of the adjudicative process, with each type of evidence being evaluated individually to determine whether the self-petitioner was extraordinary.

The two-part adjudicative approach to evaluating evidence described in Kazarian simplifies the adjudicative process by eliminating piecemeal consideration of extraordinary ability and shifting the analysis of overall extraordinary ability to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination). Therefore, under this approach, an objective evaluation of the initial evidence listed at 8 CFR 204.5(h)(3) will continue as before; what changes is when the determination of extraordinary ability occurs in the adjudicative process. USCIS believes that this approach will lead to decisions that more clearly explain how evidence was considered, the basis for the overall determination of eligibility (or lack thereof), and greater consistency in decisions on petitions for aliens with extraordinary ability.

Filing 30-1 at 3.

The policy established by this Memorandum is the following:

In order to promote consistency in decision-making, USCIS officers should use a two-part approach for evaluating evidence submitted in support of all petitions filed for Aliens of Extraordinary Ability, Outstanding Professors or Researchers, and Aliens of Exceptional Ability. USCIS officers should first objectively evaluate each type of evidence submitted to determine if it meets the parameters applicable to that type of evidence described in the regulations (also referred to as “regulatory criteria”). USCIS officers then should consider all of the evidence in totality in making the final merits determination regarding the required high level of expertise for the immigrant classification.

Filing 30-1 at 4.

This Policy is then further illuminated in a part of the Memorandum captioned “Proof”:

USCIS officers are reminded that the standard of proof for most administrative immigration proceedings, including petitions filed for

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