Amin v. Mayorkas, 21-20212

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGREGG COSTA, CIRCUIT JUDGE
PartiesBhaveshkumar Amin, Plaintiff-Appellant, v. Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services, Acting Director, United States Citizenship and Immigration Services; Gregory Richardson, Director, United States Citizenship and Immigration Services, Texas Service Center; Officer XM1698; United States of America, Defendants-Appellees.
Docket Number21-20212
Decision Date24 January 2022

Bhaveshkumar Amin, Plaintiff-Appellant,
v.

Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services, Acting Director, United States Citizenship and Immigration Services; Gregory Richardson, Director, United States Citizenship and Immigration Services, Texas Service Center; Officer XM1698; United States of America, Defendants-Appellees.

No. 21-20212

United States Court of Appeals, Fifth Circuit

January 24, 2022


Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CV-01043

Before King, Costa, and Willett, Circuit Judges.

GREGG COSTA, CIRCUIT JUDGE

Hoping to draw the world's best and brightest to American shores, the law has long given preferential treatment to highly talented immigrants. See Emergency Quota Act of 1921, 42 Stat. 5, § 2(d) (exempting artists and members of "learned profession[s]" from nationality-based immigration quotas). Over the years, these preferences have enabled Nobel laureates,

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world class athletes, and renowned artists and musicians to live and work in the United States. Recipients include Beatles frontman John Lennon, whose application for classification as an "outstanding person in the arts or sciences" was supported by letters from prominent artists including Andy Warhol. Leon Wildes, John Lennon vs. The USA: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History 69-77 (2016).

This case involves Bhaveshkumar Amin's attempt to obtain the modern version of this preference: an extraordinary ability visa. Amin, a Canadian citizen, is a talented chemical engineer who has made valuable contributions to oil and gas projects. But given the lofty bar for extraordinary ability classifications, we cannot say that the agency acted arbitrarily when it determined that Amin was not "extraordinary" but merely very good.

I

A

The current preference for highly talented immigrants was enacted in 1990, when Congress created a pathway to citizenship for noncitizens with "extraordinary ability in the sciences, arts, education, business, or athletics." 8 U.S.C. § 1153(b)(1)(A). This visa, colloquially dubbed the "Einstein" or "genius" visa, is available to those whose extraordinary ability "has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." Id. Although only a few thousand extraordinary ability visas are awarded each year, they are highly sought after. See Form 1-140, Immigrant Petition for Alien Worker Number of Petitions and Approval Status for All Countries by Fiscal Year Received and Approval Status, U.S. Citizenship & Imm. Servs., Dep't of Homeland Sec. (2019), https://www.uscis.gov/sites/default/files/document/data/I140_by_class_

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country_FY09_19.pdf (showing that between 2, 901 and 8, 508 extraordinary ability visas were granted annually from 2009-2019).

Several advantages flow from obtaining an extraordinary ability visa. Applicants for most forms of employment-based immigration must prove that they have a job waiting for them in the United States, and the Department of Labor must certify that their employment will not disadvantage similarly employed Americans. See 8 U.S.C. § 1182(a)(5). Extraordinary ability applicants do not need to meet those requirements. 8 C.F.R. § 204.5(h)(5). Also, the priority date of extraordinary ability visas is always current, meaning visa holders avoid the years-long waiting periods that apply to most other employment-based immigration categories. Josh Effron, Permanent Residency for Immigrants of Extraordinary Ability, 32 L.A. Law. 12, 13 (2009).

For those seeking the coveted visas, the statute is only the beginning of the framework. Citizenship and Immigration Services (USCIS) further explained the extraordinary ability standard in a notice-and-comment rule. 8 C.F.R. § 204.5(h). The rule defines "extraordinary ability" as "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. § 204.5(h)(2). This narrow definition reflects the stringency of the "extraordinary ability" standard. After all, a different visa is available to those whose ability is merely "exceptional." 8 U.S.C. § 1153(b)(2).

The regulation also lists the "[i]nitial evidence" applicants must include in their extraordinary ability application. Id. § 204.5(h)(3). An applicant can submit proof of a one-time achievement-"a major, international[ly] recognized award" like an Olympic gold medal or Nobel Prize. Id. Or an applicant may show that they meet "at least three" of ten listed criteria:

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(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the alien's 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;
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
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8 C.F.R. § 204.5(h)(3). If the listed criteria "do not readily apply to the beneficiary's occupation," an applicant can submit other forms of "comparable evidence." Id. § 204.5(h)(4).

An agency memorandum rounds out the documents framing this case. In 2010, USCIS issued a Policy Memorandum amending its Adjudicator's Field Manual[1] to provide guidance to officers assessing extraordinary ability applications. U.S. Citizenship & Imm. Servs., Dep't of Homeland Sec., PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22, AFM Update AD11-14, at 1 (2010) (Policy Memo). In the memo, the agency adopted the two-step approach to adjudication outlined in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Policy Memo, at 3. At the first step, the agency assesses whether the applicant submitted the required "initial evidence" listed in the regulation by a preponderance of the evidence. Id. at 5. The agency then conducts a "final merits determination" to determine whether, as a whole, the evidence is sufficient to demonstrate that the applicant meets the "required high level of expertise." Id.

B

With this foundation in mind, we turn to the case at hand. Amin is a project manager in the field of chemical engineering. He has worked for oil

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companies including Enursul and Husky Energy, and contributed to novel inventions, including a portable sulfur-forming unit, modularized well pads, and a high-efficiency drill rig.

Amin applied for an extraordinary ability visa in January 2020. He did not claim to have won a major international award. Instead, he asserted that he met four of the ten regulatory criteria: judging the work of peers (criterion four); making original contributions of major significance to his field (criterion five); leadership in distinguished industry organizations (criterion eight); and enjoying a high salary relative to his peers (criterion nine). A USCIS adjudicator denied Amin's application, finding that he only satisfied criterion four.

Amin did not appeal the decision to higher agency authority. Instead, he challenged the denial in federal district court. After Amin filed this lawsuit, USCIS's field office agreed to reconsider his application. Upon second review, the agency adjudicator again denied Amin's application. This time, the adjudicator found that he met three criteria: judging the work of others, holding leadership roles, and commanding a relatively high salary, but still concluded Amin did not show original contributions of major significance. The adjudicator acknowledged that Amin played an "important role" for his employers but found that he failed to show a significant impact on the field of chemical engineering as a whole. Still, because Amin satisfied three regulatory criteria, the adjudicator then considered whether the record established his sustained acclaim and status at the top of his field. The adjudicator concluded that he did not. Again, the agency credited Amin's contribution to his employers but found evidence of his impact on the field lacking.

Amin then amended his federal complaint, and the litigation continued. The district court granted the government's motion for summary

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judgment. It credited the agency's "thorough reasoning for why the Service came to the conclusions it...

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