Viswanadha v. Mayorkas
| Decision Date | 09 March 2023 |
| Docket Number | 3:22-CV-75 JD |
| Parties | RASAGNYA VISWANADHA, ZIMMER, INC., Plaintiffs, v. ALEJANDRO MAYORKAS, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, UR M. JADDOU, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Dr Rasagnya Viswanadha is a Canadian citizen employed by Zimmer Inc. In April 2020, Zimmer filed a Form I-140 Petition seeking an EB-1 “Outstanding Professor or Researcher” visa for Dr. Viswanadha. This petition was initially denied by the United States Citizenship and Immigration Services (“USCIS”) through its Nebraska Service Center (“NSC”). Zimmer then appealed this decision to USCIS's Administrative Appeals Office (“AAO”). The AAO also concluded that Dr. Viswanadha did not qualify for the EB-1 “Outstanding Professor or Researcher” visa and dismissed the appeal.
Dr. Viswanadha and Zimmer (collectively, the “Plaintiffs”) filed a lawsuit alleging that USCIS's decision was arbitrary and capricious and in violation of the Administrative Procedure Act (“APA”). The Court now considers a motion for summary judgment brought by the Plaintiffs and a cross motion for summary judgment brought by Defendants Alejandro Mayorkas, U.S. Citizenship and Immigration Services, and Ur M. Jaddou (collectively, the “Defendants”).[1]Because the Plaintiffs have failed to show that the decision by USCIS was arbitrary or capricious, the Court will deny Plaintiffs' motion and grant Defendants' motion.
In March 2018, Dr. Rasagnya Viswanadha, a Canadian citizen, accepted a job offer to work at Zimmer as a principal research scientist. (R. 706, 864-65.) Dr. Viswanadha was initially admitted under an H-1B employment-based visa. (R. 724.) An H-1B visa allows businesses in the United States to temporarily employ foreign workers in “specialty occupations,” defined as those “that typically require at least a bachelor's degree in a specific field of study.” Rubman v. U.S. Citizenship & Immigr. Servs., 800 F.3d 381, 384 (7th Cir. 2015). Individuals holding an H-1B visa “are able to work in the U.S. for three years (extendable to six), after which they must apply for a different visa or return to their home country . . . .” Id.
On April 8, 2020, Zimmer filed a Form I-140, with supporting documentation, seeking an EB-1 “Outstanding Professor or Researcher” immigrant visa under the provisions of 8 U.S.C. § 1153(b)(1)(B). (R. 696-705.) A Form I-140 is the name for the immigrant visa petition filed by an employer, which requests that an employee be assigned to “one of the INA's immigrant visa preference categories for employment-based permanent residency.” Musunuru v. Lynch, 831 F.3d 880, 883 (7th Cir. 2016) (citing 8 U.S.C. §§ 1154(a)(1)(F), 1255(a)(2)). This petition must be filed by the employer and be approved by USCIS prior to the alien having his or her status changed to a lawfully admitted permanent resident. 8 U.S.C. §§ 1154(a)(1)(F), 1255(a)(2).[2] In its petition, Zimmer asserted that Dr. Viswanadha was “an internationally recognized and outstanding researcher in the fields of cell biology and physiology.” (R. 706.)
USCIS analyzes a petition to classify an alien as an outstanding professor or researcher in two steps. United States Citizenship and Immigration Services, 6 USCIS Policy Manual F.3, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-3 (last visited March 3, 2023). First, USCIS assesses “whether evidence meets regulatory criteria ....” Id. This step requires that the professor or researcher meet at least two of six regulatory criteria set forth in 8 C.F.R. § 204.5(i)(3)(i). Second, after determining if the evidence meets two of the regulatory criteria, USCIS engages in a “final merits determination” where it evaluates “all the evidence together when considering the petition in its entirety . . . in the context of the high level of expertise required for this immigrant classification.” Id.
As to the first step, Zimmer argued in its petition that Dr. Viswanadha met all six of the evidentiary criteria established by 8 C.F.R. § 204.5(i)(3)(i). Zimmer also asserted that “Dr. Viswanadha's level of achievement in her field [was] evidenced by a degree of skill and recognition substantially above that ordinarily encountered, and among the upper echelon of professionals in her field thus demonstrating that she is an outstanding professor or researcher on her final merits.” (R. 707.) In support, Zimmer filed over 500 pages of documents, including: scholarly articles and book chapters written by Dr. Viswanadha (R. 1428-1687, 1693); citations to this work by other academics (R. 919-20, 946-1055); reference letters from other experts (R. 898, 922-46, 1158-1425); an interview with Dr. Viswanadha (R. 1689); emails indicating that she had reviewed another individual's paper, judged certain scientific competitions, and was invited to speak at certain conferences (R. 1695-1716); four Zimmer Biomet Impact Awards; letters demonstrating her membership in various professional organizations (R. 1056-1079); and multiple provisional patent applications where she had been named as an inventor (R. 10811157).
After considering this evidence, USCIS's Nebraska Service Center (“NSC”) sent Zimmer and Dr. Viswanadha a notice of its intent to deny Zimmer's petition. (R. 663.) While the NSC found that Dr. Viswanadha met two of the six initial evidentiary criteria, it denied the petition during its final merits review. During this final merits review, the NSC provided several reasons why the supporting documentation was insufficient to establish that Dr. Viswanadha was internationally recognized as an outstanding researcher in cell biology and physiology.
First, the NSC reasoned that certain evidence showing the originality of Dr. Viswanadha's work did not necessarily show that she was internationally recognized as outstanding. As to Dr. Viswanadha's scholarly research, the NSC wrote that the mere fact that an individual “engaged in original research studies and produced original results” does not mean “that every researcher who performs original research that adds to the pool of knowledge in his or her field has inherently made an original contribution to the academic field as a whole.” (R. 667.) Similarly, in regard to being a referenced inventor of two patents, the NSC noted that while “the issuance of a patent does verify the originality of a device or process, the significance of an invention is not evaluated during the application process.” (R. 668.)
The NSC also reasoned that Zimmer failed to provide sufficient evidence showing that Dr. Viswanadha's research stood out as outstanding relative to her peers. For example, as to evidence that Dr. Viswanadha reviewed “one manuscript in the academic field,” the NSC wrote this was not sufficient to demonstrate that her “participation in the widespread peer-review process (a routine process in the field relying on many scientists) exceeds that of other researchers or reflects international recognition.” (R. 667.) The NSC also came to the same conclusion regarding the 53 citations that Dr. Viswanadha's published research had accumulated, writing that merely showing that “distinguished scholars have cited to the beneficiary's work” did not demonstrate “superiority or distinction [going] beyond what a graduate student can claim.” (R. 668.)
Furthermore, the NSC discounted certain evidence because it was unrelated to Dr. Viswanadha's claimed academic field of cell biology and physiology. For example, Zimmer submitted evidence that Dr. Viswanadha served as a reviewer for the Purdue Undergraduate Research Pitch Competition, the Georgia Tech Capstone Design Expo, and Northeast Indiana Regional Science and Engineering fair. (R. 1707-1717.) However, “the emails inviting and thanking the beneficiary for her service at these events [did] not articulate whether her judging related to her academic field.” (R. at 668.)
Finally, the NSC explained that it gave certain references submitted on behalf of Dr. Viswanadha less weight because the individuals providing those statements had personal relationships with the defendant or had written the letters solely for the purpose of supporting her immigrant petition.[3]Zimmer filed approximately 20 letters from other scientists serving as references for Dr. Viswanadha. (R. 898, 922-46, 1158-1425.) For example, Dr. Hannah Mitchison, a professor of molecular medicine at University College London, wrote that “Dr. Viswanadha's research on ciliary dynein assembly has laid the foundation for a multitude of studies in ciliary biology” and that “her outstanding researching [was] used . . . as the basis for my own work.” (R. 922-46.) Multiple other similar letters were filed. (R. 898, 1158-1425.)
However, the NSC found that these letters did not demonstrate she was “recognized internationally as outstanding in the academic field” because most of the letters were “written by experts who have employed, instructed, or collaborated” with Dr. Viswanadha. The NSC was also concerned that the letters were “solicited by the beneficiary for the sole purpose of supporting her immigrant petition.” (R. 668.)
After issuing its notice of denial, the NSC notified Zimmer it had 30 days to submit further evidence in response. (R. 669.). Zimmer did provide some additional evidence, but the NSC issued a decision denying the petition along largely the same grounds. (R. 191.) However, the NSC now also wrote that “the letters from independent experts from across the globe appear to be fabricated” due to the letters using “the same language to discuss the beneficiary's research.” (R. 191-92.)
Zimmer then filed an appeal to USCIS's Administrative Appeals Office (“AAO”). (R...
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