Yu Gu v. Mayorkas

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YU GU, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants.

Civil Action No. 19-cv-02496 (TSC)

United States District Court, District of Columbia

September 26, 2022

MEMORANDUM OPINION

TANYA S. CHUTKAN United States District Judge.

Plaintiffs Gu Yu, Zhao Tingting, Lin Jia Ru, and Mu Jiang all sought EB-1A immigrant visas as “aliens with extraordinary ability,” pursuant to 8 U.S.C. § 1153(b)(1)(A). United States Citizenship and Immigration Services (“USCIS”) denied each of their applications for a failure to meet the required regulatory standards. Plaintiffs jointly filed suit, alleging USCIS' denials of their visa petitions were arbitrary and capricious in violation of the Administrative Procedure Act (“APA”), 5 U.S.C §§ 701 and 702 et seq. Each Plaintiff has moved for summary judgment. See Gu Mot. for Summ. J. (“Gu MSJ”), ECF No. 19; Zhao Mot. for Summ. J. (“Zhao MSJ”), ECF No. 26; Lin Mot. for Summ. J. (“Lin MSJ”), ECF No. 36; Mu Mot. for Summ. J. (“Mu MSJ”), ECF No. 41. Defendants have cross-moved for summary judgment as to each plaintiff. For the reasons explained below, the court will DENY Gu and Zhao's motions and GRANT in part and DENY in part Lin and Mu's motions. The court will GRANT Defendants' cross-motion as to Gu and Zhao and DENY the cross-motions as to Lin and Mu. The court will also DENY Gu's motion for leave to amend.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Immigration and Nationality Act (“INA”) prioritizes immigrant visas for “aliens with extraordinary ability” in the sciences, arts, education, business, or athletics. 8 U.S.C. § 1153(b)(1)(A). An immigrant is eligible for such a visa 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.

Id. The EB-1A visa is not meant to be a broad category and is “extremely restrictive by design.” Visinscaia v. Beers, 4 F.Supp.3d 126, 131 (D.D.C. 2013). Extraordinary ability visas are limited to the “small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2).

An alien seeking an extraordinary ability visa must file a Petition for Immigrant Worker Form I-140. Id. § 204.5(a). They need not present a prior offer of employment or a labor certification from the Department of Labor, Id. § 204.5(h)(5), but must show with “clear evidence” that they are coming to the United States to work in their area of expertise. Id. That evidence may include “letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement” detailing how the petitioner intends to continue their work in the United States. Id.

The petitioner further bears the burden of demonstrating their extraordinary ability with initial evidence in their visa petition. Id. § 204.5(h)(3). They may do so by showing that they have won some major, internationally recognized “one-time achievement;” e.g., a Nobel Prize. 8 C.F.R. § 204.5(h)(3); Kazarian v. United States Citizenship and Immigration Servs., 596 F.3d 1115, 1119 (9th Cir. 2010) (citing H.R. Rep. No. 101-723 (I & II) (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6739. Alternatively, they may proffer evidence that they meet at least three of ten regulatory criteria. 8 C.F.R. § 204.5(h)(3)(i)-(x).

Should the USCIS find a petitioner's initial evidence insufficient, it may make a Request for Evidence (“RFE”) for further information as to eligibility. See 8 C.F.R. § 103.2 (b)(8)(ii). That RFE will “specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond.” Id. § 103.2 (b)(8)(iv).

USCIS then makes a “final merits determination,” weighing the totality of the evidence to see if the petitioner has demonstrated extraordinary ability. See Visinscaia, 4 F.Supp.3d at 131. Plaintiffs contend that this final determination is an extra step, and that showing a one-time achievement, or three regulatory criteria establishes extraordinary ability. See Gu MSJ at 3-4 (quoting Buletini v. INS, 860 F.Supp. 1222, 1233-34 (E.D. Mich. 1994)). While the D.C. Circuit has not addressed this issue, the Ninth Circuit has endorsed the two-step test. Kazarian, 596 F.3d at 1121-22. Other courts in this District have employed this test, as shall this court. See Visinscaia, 4 F.Supp.3d at 131; Liu v. Mayorkas, No. 20-cv-0704, 2021 WL 5578672 (D.D.C. Nov. 30, 2021); Hamal v. United States Dep't of Homeland Sec., No. 19-cv-2534, 2020 WL 2934954 (D.D.C. June 3, 2020).

If a petition is denied, an applicant may either appeal or move to reopen the petition. 8 C.F.R. §§ 103.3, 103.5. The latter should be accompanied by new facts or evidence. Id. § 103.5(a)(2). USCIS may also reopen proceedings sua sponte. Id. § 103.5(a)(5).

B. Parties

i. Gu Yu

Plaintiff Gu Yu is a Chinese citizen who is a Professor and Head of the Department of Intelligent Science and Technology at the Beijing University of Science and Technology's School of Automation and Electrical Engineering. Gu MSJ at 5. He filed an I-140 petition on July 2, 2018, seeking classification “as an alien of extraordinary ability in the field of scientific research.” Id. at 4. Gu claimed to meet the following criteria:

(i) receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(iii) evidence of published material about him in professional or major trade publications or major media;

(iv) participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

(vi) evidence of the alien's authorship of scholarly articles in the field; and

(viii) performance of a leading or critical role for organizations or establishments that have a distinguished reputation.

Id. at 6.

On July 24, 2018, USCIS issued an RFE, seeking further evidence for Gu's claim under criteria (i), (iii), and (vii) and evidence that he had a “prearranged commitment for working in the field.” Id. at 9-10. Gu responded on October 17, 2018, and USCIS denied his petition on October 25, 2018, finding that Gu met criteria (iv) and (vi), but failed to demonstrate (i), (iii), or (viii), and had not shown his intent to continue working in his field. Id. at 14; see also Oct. 25, 2018 Gu Decision, Gu J.A. at 40-41, ECF No. 50-1.

Gu filed a Motion to Reopen on November 27, 2018, challenging USCIS's determination as to criterion (iii) and his intent to continue working in the field. Gu MSJ at 14-15. USCIS denied that Motion on December 17, 2018 and affirmed its denial of Gu's petition. Id. at 16.

ii. Zhao Tingting

Plaintiff Zhao Tingting is a Chinese citizen. First Am. Compl. ¶ 297. As a fashion model, she won Miss World China 2005, and competed in the Miss World Global Pageant in 2005. Zhao MSJ at 4. She filed an I-140 petition on July 30, 2018, seeking classification as an alien of extraordinary ability in the field of modelling. Id. Zhao claims that winning Miss World China in 2005 is “by itself” the sort of “one-time achievement” that should qualify her for an EB-1A visa. Id at 4, 5. Her petition, however, also included evidence that she qualified for a visa based on the following criteria:

(i) receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(iii) evidence of published material about her in professional or major trade publications or major media; and

(iv) participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought.

Id. at 5-6.

USCIS issued an RFE on August 15, 2018 seeking further information as to how Zhao's entry would “substantially benefit prospectively the United States” and whether she would “continue to work in [her] claimed area of expertise,” and more evidence as to criteria (i) and (iii). Id. at 7-8; see also Aug. 15, 2018 Zhao RFE, Zhao J.A. at 141-47, ECF No. 50-2. The RFE also questioned whether Miss World China 2005 was a sufficient “one-time achievement” to merit an EB-1A visa, though conceded that Zhao had met her burden on criteria (iv). Zhao MSJ at 7-8.

Zhao provided further evidence and argument that winning Miss World China was a sufficient achievement to alone merit an EB-1A visa, and that she also had met the standard for criteria (iii) and (iv). Id. at 11-13. Nonetheless, USCIS denied Zhao's I-140 petition, finding that she had failed to demonstrate that Miss World China was a qualifying one-time achievement, and that she had failed to show, per criterion (i), documentation of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. Id.

iii. Lin Jia Ru

Plaintiff Lin Jia Ru is a Taiwanese citizen who resides in the United States. First Am. Compl. ¶¶ 130, 132. She is a graphic designer who works on packaging design for such companies as Gucci, Louis Vuitton, Coach, Zara, Nars, Comme des Gargons, and Tom Ford Beauty. Lin MSJ at 1. She filed an I-140 petition on March 21, 2019, seeking classification as an alien of extraordinarily ability in the field of packaging design. Id. at 4. Lin presently holds an O-1 visa, a non-immigrant analogue to an EB-1A visa. Id.; see 8 U.S.C. §...