Viswanadha v. Mayorkas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RASAGNYA VISWANADHA, ZIMMER,

INC.,

Plaintiffs,

v. Case No. 3:22-CV-75 JD

ALEJANDRO MAYORKAS, US

CITIZENSHIP AND IMMIGRATION

SERVICES, UR M. JADDOU,

Defendants.

OPINION AND ORDER

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.

A. Factual Background

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

1 Mr. Mayorkas is the Secretary of the Department of Homeland Security. (DE 1.) Ms. Jaddou is the Director of

USCIS. (Id.)

2 Approval of an I-140 petition merely makes the worker eligible to receive a visa “because there is a quota where

only a certain number of visas are made available per country of origin each calendar quarter.” Musunuru, 831 F.3d

at 883 (citing 8 U.S.C. §§ 1151(a)(2), 1152(a)). An alien may only become a permanent resident after (1) having an

approved I-140 petition, (2) having an immigrant visa immediately available when filing an application for an

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;

adjustment of status, and (3) filing an application for an adjustment of status to permanent resident. 8 U.S.C. §

1255(a).

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. 1081–

1157).

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.)

3 The NSC also noted that the one manuscript review was from one of Dr. Viswanadha’s “former colleagues” and

discounted it on that basis. (R. at 667.)

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.

13.) In this appeal, Zimmer recognized that step one of the two-step analysis had already been

met and therefore “focused [its argument] solely” on step two: whether Dr. Viswanadha was “an

outstanding researcher after considering the evidence as a whole in the context of a final merits

determination.” (R. 16.) Zimmer also provided an updated list of citations to her article. (R. 190

(indicating that she has been cited 61 times to her five most published articles); R. 4 (indicating

she has 67 international citations to her two most important works).) Additionally, Zimmer now

asserted that Dr. Viswanadha’s field was ciliary biology, rather than cell biology and

physiology.4 (R. 33.)

4 The AAO, in its opinion, explained that “a petitioner may not make material changes to a petition in an effort to

make a deficient petition conform to USCIS requirements” and that “[t]he Petitioner must submit evidence to

demonstrate that the Beneficiary is recognized as outstanding in the academic field specified in the petition.” (R. 3

n.2.) The AAO also explained that “ciliary biology” would not be recognized as an “academic field” because, under

the regulatory definition, an academic field is a “body of specialized knowledge offered for study at an accredited

U.S. university or institution of higher education” and the petitioner did not present any evidence that “ciliary

On September 17, 2021, the AAO issued a determination dismissing Zimmer’s appeal.

The AAO first determined that it agreed with the NSC as to step one of the analysis and

concluded that Dr. Viswanadha met at least two of the six regulatory criteria. At step two, the

AAO again agreed with the NSC’s conclusion and determined that, after a “review of the totality

of the evidence,” Zimmer failed to establish that Dr. Viswanadha was “internationally

recognized as an outstanding professor or researcher in the academic field.” In doing so, the

AAO largely concurred with the reasoning of NSC. For example, like the NSC decision, the

AAO determined that the patent applications where Dr. Viswanadha was listed as an inventor did

not, by themselves, demonstrate international recognition or outstanding achievement because

while “a patent recognizes originality” it does not necessarily show the “significance of the

innovation.” (R. 9.) Additionally, like the NSC, the AAO determined that the evidence submitted

regarding Dr. Viswanadha judging the work of others did not show that this judging was related

to “the fields of cell biology and physiology” because the documentation “did not indicate whose

work” was judged, their stature, or the research projects evaluated. (R. 5.) Furthermore, like the

NSC, the AAO concluded that Dr. Viswanadha providing informal input on a research paper and

receiving invitations to speak at conferences did not “differentiat[e] her from others in her field”

so as to demonstrate she was “recognized internationally with the academic field as

outstanding.”(R. at 6–7.)

However, the AAO did disagree with the NSC’s notice in two respects. First, the AAO

found that the letters from other academics should not be discounted “simply because they were

obtained for the purpose of supporting this petition.” (R. 4.) Second, the AAO found that the

NSC’s assertion that the letters “appear to be fabricated” was unsupported. (Id.) The AAO then

biology” was offered for study at an accredited U.S. university or institution of higher education. (Id.) Accordingly,

the AAO used “cell biology and physiology” as the relevant academic field.

independently reviewed and considered each of the letters submitted by Zimmer. (R. 7 n.13.)

After conducting this review, the AAO concluded that even though many of the letters indicated

that Dr. Viswanadha’s research contributed to the “cilia field,” the letters did not detail how Dr.

Viswanadha’s “findings . . . advanced the state of research in the academic field [of cell biology

and physiology] or explain how the Beneficiary’s work has influenced the wider field beyond the

teams of researchers who have directly cited to the Beneficiary’s articles.” (R. 8.) Meaning,

while the AAO disagreed with why the NSC discounted the letters, the AAO found that the

letters did not demonstrate that Dr. Viswanadha was internationally recognized as outstanding in

cell biology on separate grounds. The AAO ultimately dismissed the appeal concluding that “[a]

review of the totality of the evidence . . . does not establish that [Dr. Viswanadha] is

internationally recognized as an outstanding professor or researcher in the academic field.” (R.

12.)

Following the AAO’s decision, Zimmer and Dr. Viswanadha (the “Plaintiffs”) filed a

complaint against Alejandro Mayorkas (the Secretary of the Department of Homeland Security),

Ur M. Jaddou (the director of USCIS), and USCIS. (DE 1.) Plaintiffs brought one claim for

violation of the Administrative Procedure Act, 5 U.S.C. § 701, alleging that USCIS’s decision to

deny Plaintiffs’ I-140 Petition was arbitrary and capricious. Plaintiffs filed a motion for summary

judgment. (DE 24.) Defendants then filed a cross motion for summary judgment. (DE 27.) These

motions are now ripe for review.

B. Standard of Review

Under the APA, courts set aside agency action “only if it is arbitrary, capricious, an abuse

of discretion, unsupported by substantial evidence in the case, or not in accordance with the

law.” Little Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 853 (7th Cir. 2009); see also 5 U.S.C. §

706(2). These standards overlap. Orchard Hill Bldg. Co. v. United States Army Corps of

Engineers, 893 F.3d 1017, 1024 (7th Cir. 2018). “The APA’s arbitrary-and-capricious standard

requires that agency action be reasonable and reasonably explained.” Fed. Commc’ns Comm’n v.

Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021). When reviewing whether an action is

arbitrary and capricious, the Court “ensures that the agency has acted within a zone of

reasonableness and, in particular, has reasonably considered the relevant issues and reasonably

explained the decision.” Id.; see also Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654, 668

(7th Cir. 2016) (explaining that a decision is arbitrary and capricious if it “runs counter to the

evidence before the agency, or is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise”). “A determination is unsupported by substantial

evidence when the record lacks evidence that a reasonable mind might accept as adequate to

support the conclusion.” Orchard Hill Bldg. Co., 893 F.3d at 1024 (citations and quotation marks

omitted). Under both standards, “the scope of review is narrow and a court must not substitute its

judgment for that of the agency.” Id. (citations and quotation marks omitted). Furthermore, when

conducting its review, the district court is “confined to the administrative record[.]” Little Co. of

Mary Hosp., 587 F.3d at 856.

“APA cases are often resolved at summary judgment because whether an agency’s

decision is arbitrary and capricious is a legal question that the court can usually resolve on the

agency record.” Amin v. Mayorkas, 24 F.4th 383, 391 (5th Cir. 2022) (citing Univ. Med. Ctr. of

S. Nevada v. Shalala, 173 F.3d 438, 440 n.3 (D.C. Cir. 1999)). Rather than determining whether

there is a genuine dispute of material fact as in a typical summary judgment case, in cases

“involving review of a final agency action under the APA, ‘summary judgment instead serves as

a mechanism for deciding, as a matter of law, whether the agency action is . . . consistent with

the APA standard of review.’” Star Way Lines v. Walsh, 596 F. Supp. 3d 1142, 1149 (N.D. Ill.

2022) (quoting Fisher v. Pension Guard. Corp, 468 F. Supp. 3d 7, 18 (D.D.C. 2020)). “So, [t]o

survive summary judgment under the APA, the plaintiffs must point to facts or factual failings in

the administrative record that indicate that the [agency’s] decision is arbitrary, capricious, an

abuse of discretion, [unsupported by substantial evidence,] or otherwise not in accordance with

law.” Id. (citation and quotation marks omitted).

C. Discussion

Plaintiffs argue that the denial by USCIS was arbitrary and capricious for several reasons.

First, they assert that that the level of scrutiny applied by USCIS was based on ultra vires agency

guidance which improperly imposed an additional “final merits determination” not otherwise

embodied in the statute. (DE 24 at 3.) Second, they argue that the agency’s decision was

arbitrary and capricious because they disregarded multiple categories of valid evidence. (Id. at

12–20.) The Court will address each of these arguments, but first explains the statutory and

regulatory background in order to provide context.

1. Statutory and Regulatory Framework

The Immigration Act of 1990 (the “Act”) expanded the United States visa system by

increasing the number of employment-based immigrants admitted annually to 140,000. 8 U.S.C.

1151(d)(1)(A). If awarded, these employment-based immigrant visas give the alien permanent

resident status in the United States. 8 U.S.C. § 1151(a). The Act allocates employment-based

visas based on five categories of immigrants: (1) priority workers; (2) aliens who are members of

the professions holding advanced degrees or aliens of exceptional ability; (3) skilled workers,

professionals, and other workers; (4) certain special immigrants; and (5) aliens entering the

United States for the purpose of engaging in a new commercial enterprise. 8 U.S.C. § 1153(b).

Each of these categories receives a certain portion of the total employment-based visas allocated

each year.

The first category of visa, priority workers, is called an EB-1 visa. It is further subdivided

into three categories: (a) aliens with extraordinary ability in the sciences, arts, education,

business, or athletics; (b) outstanding professors and researchers; and (c) certain multinational

executives and managers. 8 U.S.C. § 1153(b)(1). Priority workers visas contain certain

advantages compared to other categories. For example, if an alien were to apply for an

“exceptional ability” employment-based visa, or a “skilled workers” employment-based visa,

they would have to go through a labor certification process. 8 C.F.R. § 204.5(k)(4), (l)(3)(i). This

process can often be quite time-consuming, since it “requires that employers first test the

marketplace for existing qualified domestic workers.” Kazarian v. U.S. Citizenship & Immigr.

Servs., 596 F.3d 1115, 1120 (9th Cir. 2010); see also 20 C.F.R. § 656.17 (containing the

regulations surrounding the basic labor certification process, including setting forth the typical

pre-filing recruitment process, which requires employers to demonstrate that they advertised the

position and took additional recruitment steps, such as conducting a job fair, on-campus

recruiting, or used a private employment firm, among others). However, the “extraordinary

ability” visa, the “outstanding professors and researchers” visa, and the “multinational executives

and managers” visa do not require this time-consuming labor certification process. 8 C.F.R. §

204.5(h)(5), (i)(iv), (j)(5).

Accordingly, an employer may opt to petition for a visa with more stringent requirements

in the hopes of avoiding this time-intensive work certification process. Zimmer opted to take that

route when it filed a petition seeking to classify Dr. Viswanadha as an outstanding researcher

under 8 U.S.C. § 1153(b)(1)(B).

To qualify for a visa in this category, Zimmer was required by statute to show that Dr.

Viswanadha: (1) was “recognized internationally as outstanding in a specific academic area,” (2)

had “at least 3 years of experience in teaching or research in the academic area,” and (3) sought

to enter the United States for a “tenured” or “comparable position with a university of higher

education,” or private employer to teach or conduct research in that academic area. 8 U.S.C. §

1153(b)(1)(B)(i)-(iii). The parties do not dispute that Dr. Viswanadha had at least 3 years of

experience in research or that she had a comparable position at a private employer conducting

research. Rather, the dispute centers around whether Dr. Viswanadha was “recognized

internationally as outstanding in a specific academic area.”

USCIS explains who is considered an “outstanding professor and researcher” in a notice-

and-comment rule. 8 C.F.R. § 204.5(i). This rule specifies that, as “initial evidence,” a “petition

for an outstanding professor or researcher must be accompanied by”:

(i) Evidence that the professor or researcher is recognized internationally as

outstanding in the academic field specified in the petition. Such evidence shall

consist of at least two of the following:

(A) Documentation of the alien’s receipt of major prizes or awards for

outstanding achievement in the academic field;

(B) Documentation of the alien’s membership in associations in the

academic field which require outstanding achievements of their members;

(C) Published material in professional publications written by others about

the alien’s work in the academic field. Such material shall include the title,

date, and author of the material, and any necessary translation;

(D) Evidence of the alien’s participation, either individually or on a panel,

as the judge of the work of others in the same or an allied academic field;

(E) Evidence of the alien’s original scientific or scholarly research

contributions to the academic field; or

(F) Evidence of the alien’s authorship of scholarly books or articles (in

scholarly journals with international circulation) in the academic field.

8 C.F.R. § 204.5(i)(3).

A policy manual issued by USCIS provides further guidance to officers assessing an

outstanding professor or researcher application. 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). This policy manual advises that “[o]fficers should use a

two-step analysis to evaluate the evidence submitted with the petition.” Id. At step one, the

officer analyses whether evidence meets the six regulatory criteria under 8 C.F.R. § 204.5(i)(3).

At step two, the officer engages in a “final merits determination” where the officer “evaluate[s]

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. This statement in the policy

manual is based on the process outlined in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

Accordingly, the process is colloquially referred to as the “Kazarian analysis.” See Arbor Home,

LLC v. Mayorkas, 604 F. Supp. 3d 878, 887 (N.D. Cal. 2022) (referring to this two-step process

as the “Kazarian analysis”); Noroozi v. Napolitano, 905 F. Supp. 2d 535, 545 (S.D.N.Y. 2012)

(same).

The Plaintiffs object to using the Kazarian analysis in this context, asserting that USCIS

lacks the authority to conduct a “final merits determination”

2. The Two-Step Kazarian Analysis is not an Improper Ultra-Vires Requirement

Plaintiffs raise two distinct procedural arguments to the legal framework

that the agency applied. First, Plaintiffs argue that application of the Kazarian policy and the

“final merits determination” went beyond “the analysis contemplated by congress.” (DE 24 at

22.) Second, Plaintiffs argue that the two-step Kazarian analysis cannot be “mandated without

notice and comment.” (DE 24 at 24.)

Prior to addressing these arguments, the Court notes as an initial matter that Plaintiffs

repeatedly misidentify the regulatory criteria enumerated in 8 C.F.R. § 204.5(i)(3) as “statutory

requirements.” (DE 24 at 11 (“USCIS found that Dr. Viswanadha met the statutory requirements

pursuant to two of the enumerated criteria . . . 8 C.F.R. § 204.5(i)(3)(i)(D) . . . and 8 C.F.R. §

204.5(i)(3)(i)(F)”; Id. at 20 (“USCIS agreed that Dr. Viswanadha met the requisite statutory

elements to receive the outstanding Professor and Researchers classification (two of six statutory

factors);” Id. at 23, 25.) Plaintiffs also imply that 8 C.F.R. § 204.5 was drafted by Congress. (DE

24 at 3 (“Dr. Viswanadha met two of the criteria of 8 C.F.R. § 204.5(i)(3)(i)(A)–(E), as

envisioned by Congress for approval ”); Id. at 23 (“[Dr. Viswanadha] has qualified under the

statutory provisions outlined in the regulations envisioned by Congress.”); Id. at 25 (“Dr.

Viswanadha has met the requirements as outlined by Congress in 8 C.F.R. § 204.5(i)(3)(i)(A)–

(E).).

However, 8 C.F.R. § 204.5(i)(3)(i)(A)–(E) is not a statute and was not drafted by

Congress. First, that this section was published in the “Code of Federal Regulations” (or, when

made into an acronym, “C.F.R.”) indicates that the sections therein are not statutes. See also

Code of Federal Regulations Definition, Black’s Law Dictionary (11th ed. 2019) (explaining that

the Code of Federal Regulations is “[t]he collection of executive-agency regulations published in

the daily Federal Register”). Second, Congress delegated authority for issuing regulations related

to immigration to the Department of Homeland Security. Under 8 U.S.C. § 1103(a)(1), Congress

charged the Secretary of Homeland Security with “the administration and enforcement of this

chapter and all other laws relating to the immigration and naturalization of aliens . . . .” See

Bayou Lawn & Landscape Servs. v. Johnson, 173 F. Supp. 3d 1271, 1289 (N.D. Fla. 2016)

(explaining that “Congress has vested DHS with broad authority to regulate the admission of

nonimmigrant aliens,” citing to 8 U.S.C. § 1103(a)). That section also gave the Secretary of

Homeland Security authority “to establish such regulations . . . and perform such other acts as he

deems necessary for carrying out his authority under the provisions of this chapter.” 8 U.S.C. §

1103(a)(3); see also City & Cnty. of San Francisco v. United States Citizenship & Immigr.

Servs., 944 F.3d 773, 798 n.16 (9th Cir. 2019) (explaining that “Congress has authorized DHS to

adopt regulations,” citing to 8 U.S.C. § 1103(a)(3)).

Given that 8 C.F.R. § 204.5(i)(3)(i)(A)–(E) is clearly not a statute, it appears that the

Plaintiffs are, in fact, arguing that the Kazarian analysis conflicts with the regulation. However,

even with this generous interpretation, such an argument fails.

The agency’s two-part Kazarian analysis is consistent with both the statute and the

regulation. The statutory text merely indicates that the alien must be “recognized internationally

as outstanding in a specific academic area[.]” 8 U.S.C. 1153(b)(1)(B)(i). It does not include

further criteria elaborating on what must be shown in order to demonstrate that the alien is

“recognized internationally as outstanding in a specific academic area.” DHS, however, did

choose to issue a regulation addressing what was necessary to be “recognized internationally as

outstanding in a specific academic area.”5 The regulation provides that an alien must present

evidence satisfying two of the six enumerated criteria. 8 C.F.R. § 204.5(i)(3).

However, just because meeting two of the six criteria is necessary to qualify as being

“recognized internationally as outstanding in a specific academic area,” this does not mean that

meeting two of the criteria is sufficient by itself. For example, being 18 years old is a necessary

5 While their brief is somewhat confusing due to their misuse of the term “regulation” and “statute,” the Plaintiffs do

not appear to raise the argument that 8 C.F.R. § 204.5 is in conflict with 8 U.S.C. 1153(b)(1)(B). To the extent this is

the argument that Plaintiffs are making, it is waived. Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016)

(“Moreover, perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are

waived . . . .”).

condition for voting in a federal election, but it is not a sufficient condition. The word choice in

this subsection indicates that the regulation was merely setting forth a necessary condition, rather

than a sufficient condition. First, the regulation includes these six criteria under a heading

reading, “initial evidence,” which implies that even if evidence was presented as to two of the six

criteria, some further showing would be required. 8 C.F.R. § 204.5(i)(3). Second, the regulation

provides that the evidence consists of “at least” two of the six criteria. If two alone were

sufficient, then the regulation would likely not invite more proof.

This reading is consistent with how other courts have interpreted the regulation that sets

forth the requirements to receive an extraordinary ability visa in 8 C.F.R. § 204.5(h)(3). Like the

outstanding researcher visa, the extraordinary ability visa lists the “initial evidence” applicants

must include in his or her petition. Under that regulation, as “initial evidence,” the applicant can

either submit proof of a one-time achievement, such as a Nobel prize, or show that they meet “at

least three” of ten listed criteria. 8 C.F.R. § 204.5(h)(3). Furthermore, like the outstanding

researcher visa, USCIS conducts the two-step Kazarian analysis, first determining that the

regulatory criteria have been proved, before moving on to a “final merits determination.” United

States Citizenship and Immigration Services, 6 USCIS Policy Manual F.2,

https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (last visited March 3, 2023).

In Amin v. Mayorkas, 24 F.4th 383 (5th Cir. 2022), the Fifth Circuit had to determine

whether USCIS’s usage of the two-step Kazarian analysis was consistent with the text of 8

C.F.R. § 204.5(h)(3). The Fifth Circuit concluded it was consistent. In doing so, the Fifth Circuit

relied on two pieces of language found in 8 C.F.R. § 204.5(h)(3) (addressing extraordinary

ability visas) that are also found in 8 C.F.R. § 204.5(i)(3) (addressing outstanding professor and

researcher visas). The Fifth Circuit explained that 8 C.F.R. § 204.5(h)(3)’s description of the

evidentiary criteria as “initial evidence,” alongside the requirement that the applicant “must

submit evidence of ‘at least three’ criteria . . . contemplate[d] another step beyond submitting the

enumerated evidence [because] [i]f satisfying three criteria were enough, why would the agency

invite proof of more?” Id. at 391. Given that these key phrases appear almost verbatim in the

regulation this Court is considering, the Court finds that Amin’s conclusion is equally applicable

here: namely, that the agency’s usage of the Kazarian analysis is consistent with 8 C.F.R. §

204.5(i)(3) (addressing outstanding professor and researcher visas).

Plaintiffs’ interpretation of the regulation would also go against the statutory text in 8

U.S.C. § 1153(b)(1)(B). Plaintiffs would merely require an applicant to meet two of six of the

enumerated regulatory criteria, without any further inquiry. However, 8 U.S.C. § 1153(b)(1)(B)

provides that “visas shall be made available . . . to (B) outstanding professors and researchers.”

The act then further explains that an outstanding professor and researcher must be “recognized

internationally as outstanding in a specific academic area.” 8 U.S.C. § 1153(b)(1)(B)(i). If the

Court were to accept Plaintiffs’ interpretation, then researchers who had merely judged others’

work and had written articles (satisfying two of the regulatory criteria), but who had not

demonstrated that this work went beyond that done by the average researcher, would qualify for

the visa. In other words, Plaintiffs’ interpretation would not require the applicant to prove that

their work stood out relative to their peers. Such an interpretation directly conflicts with the

statutory text, which requires the applicant be “recognized internationally as outstanding in a

specific academic area.”

The Fifth Circuit reached a similar conclusion in Amin. There, the Plaintiff argued that at

the second step, “once an applicant meets three of the ten regulatory criteria” (as required for an

extraordinary ability visa), “the regulation shifts the burden to the government to explain why the

applicant has not demonstrated extraordinary ability.” Amin, 24 F.4th at 391. The statute for an

extraordinary visa requirement includes similar language to the “recognized internationally as

outstanding” requirement in 8 U.S.C. § 1153(b)(1)(B)(i). Specifically, that statute requires that

the extraordinary ability be “demonstrated by sustained national or international acclaim.” 8

U.S.C. § 1153(b)(1)(A). The Fifth Circuit concluded that the plaintiff’s “view [was] unmoored

from the statute in not requiring an applicant to prove that” they had an “extraordinary ability

which has been demonstrated by sustained national or international acclaim.” Amin, 24 F.4th at

391.

Arguably, Plaintiffs interpretation in this case is even more unmoored from the statute’s

text. Rather than asserting that meeting two of the criteria shifts the burden to the government,

Plaintiffs here assert that meeting two of the criteria is itself sufficient to end the inquiry. As

explained above, such an interpretation is in conflict with both the text of the regulation (which

sets forth criteria that must be met to show “initial evidence”) and the text of the statute (which

requires that the applicant be recognized internationally as outstanding in a specific academic

area). Accordingly, the Court finds that using the two-step Kazarian analysis is not in conflict

with the regulation or the statute.6

Plaintiffs raise the related argument that the AAO, throughout their decision, uses the

wrong burden. (DE 24 at 17–19.) In their decision, the AAO dismisses certain evidence because

6 The Court notes that this holding is not predicated on what is often called Auer deference, the doctrine that “a court

should defer to the agency’s construction of its own regulation.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). That

doctrine only applies if the “regulation is genuinely ambiguous.” Id. Here, the regulation is quite clear, only setting

forth the “initial evidence” required and providing that applicants provide “at least” two of six enumerated criteria. It

is apparent from the regulatory text alone that some further analysis is required. Therefore, the Court need not defer

to the agency’s view, as expressed in the policy manual, because the result is the same as if this Court deferred. See

Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002) (explaining that there is “no point” in deferring when the

agency’s view is “the position [the court] would adopt . . . interpreting the [regulation] from scratch”).

it did not show that it was “widely utilized in the cell biology field,” did not show that Dr.

Viswanadha’s research affected the field of “[c]ell biology in a substantial way,” and did not

show it had a “meaningful impact” in cell biology. (R. 6–8.) Plaintiffs assert that this analysis

was flawed because the regulatory criteria do not require such an impact. However, as previously

discussed, during the final merits review, the officer must “evaluate the evidence together when

considering the petition in its entirety to make a final merits determination of whether or not

petitioner . . . has demonstrated that the beneficiary is recognized internationally as outstanding

in a specific academic area.” 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). Inquiring into whether Dr. Viswanadha’s work impacted the field of cell

biology in a substantial or meaningful way, or if her work was widely utilized in that field, was

reasonable given that the purpose of the final merits review was to determine if she was

recognized internationally as outstanding in cell biology.

Next, the Court addresses Plaintiffs’ argument that the promulgation of the Kazarian

policy is invalid because the agency failed to offer a notice-and-comment period. Plaintiffs argue

that the promulgation of the Kazarian analysis in the policy manual was a legislative rule

requiring it to go through a notice-and-comment procedure under the APA. Because a notice-

and-comment period is required for legislative rules, Plaintiffs assert that the Kazarian analysis

is invalid. The Court disagrees, finding that the rule is interpretive in nature and does not alter

any substantive rights.

Under 5 U.S.C. § 553, an agency must offer notice and comment for legislative rules.

However, there is a categorical exemption “of interpretative rules from the notice-and-comment

process” under 5 U.S.C. § 553(b)(A). Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 100 (2015).

Accordingly, whether the guidance provided in the policy manual is legislative or interpretive

determines whether a notice-and-comment period had to occur.

Generally speaking, ‘“legislative rules’ are those which create law, usually

implement[ing] an existing law.” Alabama Tissue Ctr. of Univ. of Alabama Health Serv. Found.,

P.C. v. Sullivan, 975 F.2d 373, 377 (7th Cir. 1992). Meaning, a legislative rule creates a new

right or duty. Metropolitan School Dist. of Wayne Twp., Marion County, Ind. v. Davila, 969 F.2d

485, 490 (7th Cir. 1992) (“[I]f by its action the agency intends to create new law, rights, or

duties, the rule is properly considered to be a legislative rule.”); see also Mann Constr., Inc. v.

United States, 27 F.4th 1138, 1143 (6th Cir. 2022) (“Legislative rules impose new rights or

duties and change the legal status of regulated parties.”). On the other hand, “interpretive rules

are statements as to what the administrative officer thinks the statute or regulation means.”

Alabama Tissue Ctr. of Univ. of Alabama Health Serv. Found., P.C., 975 F.2d at 377. Rather

than creating new rights or duties, “interpretive rules merely clarify the requirements that

Congress has already put in place.” Mann Constr., Inc., 27 F.4th at 1143.

The statute at issue, 8 U.S.C. § 1153(b)(1)(B)(i), by its own terms, required that the

applicant be “recognized internationally as outstanding in a specific academic area.” The

statement in the policy manual clarified that burden of an applicant by instructing officers to

engage in a two-step process requiring (1) an initial showing of two of the regulatory criteria (as

required by the regulation) and then (2) a final merits review which evaluated “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.” 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). This two-step process merely holds the applicant to the

burden envisioned by Congress. As explained previously, only requiring an applicant to satisfy

two of the six regulatory criteria would allow for applicants who were not “recognized

internationally as outstanding in a specific academic area” to qualify for the outstanding

researcher and professor visa. By putting forth this interpretive rule, USCIS did not add to an

applicant’s burden, but simply provided guidance to USCIS officers that a further inquiry was

required beyond the “initial evidence” as set forth in the regulations.

Other courts have reached similar conclusions when considering analogous policies. For

example, in Amin, the Fifth Circuit found that a USCIS policy memo which set forth the two-step

Kazarian analysis, as applied to extraordinary ability visas, “merely clarifie[d] the order in which

agency adjudicators evaluate the evidence.” Amin, 24 F.4th at 392. Because the policy memo

only clarified how the evidence was evaluated, rather than provide new substantive rights or

obligations, the Fifth Circuit held that the policy memo was “not a legislative rule subject to the

notice-and-comment requirement.” Id. While not specifically addressing the Kazarian analysis,

other courts have also found that policy manuals and memoranda issued by USCIS set forth

interpretative rules, rather than legislative rules. See, e.g., Diaz v. USCIS, 499 F. App’x 853, 855

(11th Cir. 2012) (per curiam) (“We have held that a field manual or other internal administrative

guidance that has not been promulgated in accordance with APA notice-and-comment rule

making procedures does not have the force and effect of law.”); see also Almakalani v.

McAleenan, 527 F. Supp. 3d 205, 221–22 (E.D.N.Y. 2021) (finding that USCIS guidance

“expressly framed as a policy memorandum, the purpose which is to provide guidance to USCIS

officers” was interpretive rather than legislative).

Plaintiffs also argue that guidance had previously been issued with a different

interpretation and that notice and comment had to issue in order to apprise the public of the

subsequent change. In support of their argument that the agency issued prior guidance, Plaintiffs

point to a case from the Eastern District of Michigan, Buletini v. INS, 860 F. Supp. 1222 (E.D.

Mich. 1994). The court there concluded that satisfying the regulatory criteria was sufficient for

an alien to be “deemed to have extraordinary ability unless the INS sets forth specific and

substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not

meet the extraordinary ability standard.” Id. at 1234. The court partially relied on guidance from

the then Acting Assistant Commissioner for Examinations of the INS which indicated that

“meeting three of the criteria for extraordinary aliens . . . is sufficient to establish the caliber of

the alien.” Id. However, an agency’s choice to issue a new interpretation, conflicting with an old

interpretation, does not require a notice-and-comment period. In fact, even where an

interpretation “deviates significantly from one the agency ha[d] previously adopted,” the

Supreme Court has held notice and comment is not required. Perez v. Mortg. Bankers Ass’n, 575

U.S. 92, 101 (2015) (“Because an agency is not required to use notice-and-comment procedures

to issue an initial interpretive rule, it is also not required to use those procedures when it amends

or repeals that interpretive rule.”).

Therefore, because the policy manual set forth an interpretive rule clarifying the sequence

in which agency adjudicators evaluate evidence, the Court finds that the rule did not require a

notice-and-comment period under the APA.

3. USCIS’s Denial was not Arbitrary or Capricious

Plaintiffs argue that USCIS’s denial was arbitrary or capricious for two reasons. First,

Plaintiffs argue the decision was not supported by substantial evidence because USCIS failed to

properly assess expert letters submitted in support of her petition and that USCIS improperly

discounted the letters as “fabricated.” Second, Plaintiffs argue that USCIS improperly discounted

Dr. Viswanadha being the inventor of two registered patents. The Court addresses each of these

arguments in turn.

The Court first finds that USCIS’s analysis of the letters was reasonable. Zimmer

submitted multiple letters in support of the petition. Generally speaking, these letters were

written by other experts and described how Dr. Viswanadha’s research contributed to ciliary

biology. For example, Dr. Winfield Sale, Professor of cell biology at Emory University Hospital,

acknowledged that Dr. Viswanadha’s research “revealed for the first time that the ciliary dyneins

are assembled as very large complexes and then, intact complexes, are transported to the cilium

for final assembly.” (R. 83.) Similar letters were submitted by other experts. (R. 898, 922–46,

1158–1425.) USCIS ultimately concluded these letters did not offer specific examples of how

her findings have “been widely utilized in the cell biology field” or have “affected the field of

cell biology in a substantial way that signifies international recognition or outstanding

achievement in the academic field.” (R. 7–8.) Plaintiffs argue that USCIS’s statement

discounting the significance of these letters was “not supported by the evidence.” (DE 24 at 13.)

They assert that the USCIS’s decision was “clearly misguided” due to the “specific examples”

from the letters showing the impact on the field. (Id.)

The Court disagrees. A decision “is unsupported by substantial evidence when the record

lacks evidence that a reasonable mind might accept as adequate to support the conclusion.”

Dep’t of Workforce Dev.-Div. of Vocational Rehab. v. United States Dep’t of Educ., 980 F.3d

558, 566 (7th Cir. 2020) (internal quotation marks and citation omitted). Here, USCIS came to a

reasonable conclusion when it discounted the letters submitted on behalf of Dr. Viswanadha and

found that they did not establish she was internationally recognized as outstanding in cell biology

and physiology.

A reasonable mind could find that, while the letters may have supported Dr. Viswanadha

making a contribution to the narrow subfield of ciliary biology, they did not indicate she made a

substantial contribution to the broader field of cell biology and physiology. In its decision, the

AAO provided two reasons why “cell biology and physiology,” rather than “ciliary biology,”

was the proper frame of reference to analyze Dr. Viswanadha’s contributions. First, the AAO

reasoned that Dr. Viswanadha had listed her academic field as “cell biology and physiology” in

her initial petition and Dr. Viswanadha could not change her field in the middle of her appeal,

writing that “[a] petitioner may not make material changes to a petition in an effort to make a

deficient petition conform to USCIS requirements.” (R. 3 n.2 (citing Matter of Izummi, 22 I&N

Dec. 169, 176 (Assoc. Commir’ 1998).) Second, Zimmer submitted no evidence that ciliary

biology could qualify as an “academic field” under the applicable regulation, which indicates

that very narrow fields of study or niche sub-fields do not constitute an ”academic field.” 8

C.F.R. § 204.5(i)(2) (defining academic field as a “body of specialized knowledge offered for

study at an accredited United States university or institution of higher education”). Given that

Zimmer failed to submit evidence that ciliary biology existed as an academic field, and failed to

list this as Dr. Viswanadha’s field in the initial petition, it was reasonable for the AAO to

examine Dr. Viswanadha’s impact on the entire field of cell biology and physiology, as opposed

to her impact on the sub-field of ciliary biology. Furthermore, because the letters submitted

predominantly speak about Dr. Viswanadha’s contribution towards ciliary biology,7 without

7 The experts largely discuss impacts to the field of “ciliary biology” without mentioning the broader field of “cell

biology.” For example, Dr. Sale opined that the beneficiary “took a very creative and unusually productive approach

that revealed for the first time that the ciliary dyneins are assembled as very large complexes . . . and then, as intact

complexes, are transported to the cilium for final assembly.” (R. 83.) Dr. Kamiya wrote that Dr. Viswanadha “took a

unique approach to combine genetics, biochemistry, and microscopy to demonstrate for the first time that the ciliary

dynein, l1, is fully assembled in the cytoplasm and then transported to the cilium for final assembly . . . .” (R. 87.)

Both Dr. King and Dr. Pigino’s letters also focused specifically on how Dr. Viswanadha’s research contributed to

“understanding . . . the mechanisms governing ciliary dynein assembly and transport.” (R. 93, 148–49.) Each of

providing any specific examples as to how her research impacted the broader field of cell

biology and physiology, it was reasonable for the AAO to conclude that the letters did not show

that she was internationally recognized as outstanding in cell biology and physiology.

In their reply, Plaintiffs argue that the field of ciliary biology is found “within the field of

cellular biology” and so demonstrating that she is outstanding in that sub-field should be

sufficient. (DE 29 at 4.) However, such a reading not only conflicts with the text of the

regulation, but also the statute itself. Under 8 U.S.C. § 1153 (b)(1)(B)(i), an alien must be

“recognized internationally as outstanding in a specific academic area[.]” The regulations then

clarify that, when determining if a researcher is outstanding in an academic field, ‘“academic

field’ means a body of specialized knowledge offered for study at an accredited United States

university or institution of higher education.” 8 C.F.R. § 204.5(i)(2) (emphasis added). In other

words, the statute’s language, using “academic area,” and the regulation, using “academic field,”

both indicate that the proper field of reference is related to some field or area that exists within

academia. As discussed above, Plaintiffs did not provide any evidence that ciliary biology is a

separate body of knowledge offered for study at an institution of higher education.

That the regulations and the agency define “academic area” and “academic field” to

include only those bodies “of specialized knowledge offered for study at an accredited United

States university or institution of higher education” is in line with purpose and structure of the

statute. The EB-1 category of visa is the highest preference category out of the five categories. If

these experts merely discussed the impact of Dr. Viswanadha on a narrow sub-field without providing any detailed

explanation for how her research established her as internationally recognized in cell biology. In fact, even the

expert whom Plaintiffs quote at length, Dr. Mitchison, only vaguely wrote that “Dr. Viswanadha’s research on the

mechanisms of dynein assembly and subsequent discovery of genes like ADA3 is a significant step forward in the

field of cell biology.” (R. 923.) However, Dr. Mitchison failed to specify how Dr. Viswanadha’s research

specifically led to this “significant step forward” in the broader field. The AAO, therefore, came to the reasonable

conclusion that Dr. Mitchison’s letter, and the other letters, failed to provide “specific examples of how her findings

. . . have been widely utilized in the cell biology field, or have otherwise influenced her field at a level

commensurate with being internationally recognized as outstanding.” (R. 7.)

a researcher were able to narrowly slice a field of study to suit their narrow subfield, then

proving that individual is truly “outstanding” and internationally recognized in a given academic

area becomes a hollow requirement devoid of meaning. Many professors who are little known to

the field at large could become outstanding or the best in a given field if the field is defined

narrowly enough to suit their specific area of expertise. Defining the academic field to be

sufficiently broad avoids allowing areas to be engineered to suit an applicant researcher’s or

professor’s niche expertise and permits only those individuals who are truly outstanding in a

recognized academic area to receive a visa. Accordingly, the AAO’s decision not to evaluate Dr.

Viswanadha’s impact on the narrow field of “ciliary biology,” but rather the academic field of

“cell biology and physiology,” corresponds with the purpose, structure, and meaning of the

statutory and regulatory text.

The Court notes that other cases have similarly held that individuals who have

demonstrated they are outstanding in one area do not necessarily demonstrate they are

outstanding in closely related areas. For example, in Lee v. Ziglar, a coach for the Chicago White

Sox petitioned for an extraordinary ability visa as “professional baseball coach.” Lee v. Ziglar,

237 F. Supp. 2d 914, 916 (N.D. Ill. 2002). The court acknowledged that the applicant was

“arguably one of the most famous baseball players in Korean history.” Id. at 915. The applicant

offered substantial evidence confirming that he “was an outstanding foreign professional

baseball player . . . presented letters from top officials in the Korean Baseball Organizations,”

certificates confirming his statistics, his receipt of national awards (including five Golden Glove

awards, a season MVP, and a triple crown title), and newspaper articles relating to his sixteen-

year career. Id. at 915–918. Despite this evidence, the court held that the denial of his petition

was reasonable because “the record only shows Lee’s achievements as a player, not a coach,

which are markedly different roles” and the agency’s “distinction between extraordinary ability

as a coach and a player is a reasonable one, entitled to deference.” Id. at 917. Like Lee, USCIS’s

distinction between a field and a sub-field is a manifestly reasonable one, maintaining the high

bar envisioned by 8 U.S.C. § 1153 (b)(1)(B). This distinction is therefore entitled to deference.

Plaintiffs next raise a different argument concerning the letters, asserting that the NSC’s

conclusion that the “letters from independent experts from across the globe appear to be

fabricated by the petitioner, the beneficiary, or by Counsel” was patently false and renders the

conclusions of the AAO as to the weight of the evidence arbitrary and capricious. (DE 24 at 15.)

However, on appeal, the AAO rejected the NSC’s analysis and “withdr[e]w” the

“unsubstantiated claim” of fabrication.” (R. 4) The AAO then conducted a thorough analysis of

the letters, specifically discussing the letters submitted by Dr. Sale, Dr. Mitchison, Dr. Kamiya,

Dr. King, and Dr. Pigino,8 and explaining that while these letters may have shown that she made

certain discoveries in the “cilia field,” they failed to provide “specific examples indicating that

[her] work has affected the field of cell biology in a substantial way that signifies international

recognition or outstanding achievement in the academic field.” (R. 7–8.)

It is the AAO’s final decision, not the NSC’s intermediary decision, which is relevant to

this Court’s analysis. This Court is only tasked with reviewing agency actions that are considered

“final.” 5 U.S.C. § 704. Meaning, the “action must mark the consummation of the agency’s

decisionmaking process — it must not be of a merely tentative or interlocutory nature —” and

the “action must be one by which rights or obligations have been determined.” U.S. Army Corps

of Eng’rs v. Hawkes Co., Inc., 578 U.S. 590, 597 (2016) (internal quotation marks and citations

8 Even though the AAO only discussed a sample “of the letters of support,” it indicated it “reviewed and considered

each one.” (R. 7 n.13.)

omitted)). Here, it is the AAO’s decision which is considered “final,” not the NSC’s. See Quality

Truck & Trailer Repair, Inc. v. Johnson, No. 13-CV-05527, 2014 WL 3906511, at *2 (N.D. Ill.

Aug. 11, 2014) (“[T]he Court is really asked to review the final administrative decision of the

AAO under the Administrative Procedure Act (“APA”)); Baldwin Dairy, Inc. v. United States,

122 F. Supp. 3d 809, 810 (W.D. Wis. 2015) (plaintiffs “seek judicial review of the AAO’s final

decision”). Accordingly, because the AAO withdrew the accusation that the letters were

fabricated, and then provided its own well-reasoned, independent analysis, the Court finds that

no reversible error was committed due to the earlier statement by the NSC.

Next, Plaintiffs argue that USCIS’s decision is not supported by substantial evidence

because it erred in its analysis of the “two registered patents” on which Dr. Viswanadha was

listed as an inventor. The USCIS concluded (1) that multiple of the patents were “provisional

patent applications” and evidence was not submitted showing the patents were granted and (2)

that, even if granted, “a patent recognizes the originality of the idea . . . [and] does not by itself

demonstrate that the inventor has made a research contribution to the academic field that

signifies international recognition or outstanding achievement.” (R. 9.) Plaintiffs assert that this

conclusion is incorrect, relying on the case Zizi v. Cuccinelli, No. 20-CV-07856-SVK, 2021 WL

2826713, at *1 (N.D. Cal. July 7, 2021). In that case, the applicant was applying for an

extraordinary ability visa. The court, after examining evidence submitted regarding a patent,

found that the “AAO’s findings on Plaintiff’s evidence of original scientific contributions of

major significance in the field” was arbitrary and capricious. Id. at 2.

However, there are several features distinguishing that case from the instant case. First,

that case only concerned the first step of the Kazarian analysis in the context of an extraordinary

visa application. USCIS never moved onto the second step of the Kazarian analysis where it

“weigh[s] the documentation offered” to ensure it demonstrates extraordinary ability. Id. Rather,

USCIS stopped its analysis at step one: determining that the applicant didn’t meet the regulatory

criteria. In the instant case, USCIS found Dr. Viswanadha met two of the six regulatory criteria

and moved on to the second step where it had to weigh the entirety of the record to ensure it met

the high level of expertise required. This second stage review requires a deeper look at the

quality of the patent applications submitted. Second, and most importantly, the applicant in Zizi

submitted evidence beyond the patent applications themselves. The applicant there included

evidence showing that he was engaged with several other parties in “advanced licensing

negotiations” for the patent, that other experts concluded that the technology “will impact sectors

across a wide spectrum,” that the applicant’s patented drugs “obtained the first positive result in

relevant cancer animal model[s] last year,” and that he was “currently . . . in contact with major

pharmaceutical companies . . . .” Id. at 3–4. Unlike the applicant in Zizi, there has not been

evidence showing that Dr. Viswanadha’s patents have had a significant impact on her academic

field. Therefore, that case is inapposite and the Court finds that USCIS’s conclusion regarding

that evidence was reasonable.

Indeed, the AAO’s entire decision appears to be highly detailed and well-reasoned. In

addition to examining the letters and patents, as discussed above, the AAO scrupulously

examined evidence that Dr. Viswanadha judged the work of others (R. 5–6), provided input on a

research paper receiving invitations to speak at conferences (R. 6), co-authored a chapter in a

book (Id.), participated in certain presentations (Id.)9, developed tissue models in a prior job (R.

9 The AAO found this evidence did not support Dr. Viswanadha being recognized internationally within cell biology

and physiology as outstanding. First, as to the evidence of judging, the petition did not establish the “requirements

for selection of judges” and failed to show that “participation in th[ose] events involved judging the work of others

in the field of cell biology and physiology.” In other words, she failed to show whether judging this competition

indicated that its judges were recognized internationally as outstanding in cell biology. Second, merely “receiving

invitations to review manuscripts, to provide input for conferences, or to speak at conferences based on subject

9), authored five articles which had been cited over 53 times,10 received impact awards from her

employer, was a post-doctoral fellow for the American Heart Association, and was a member of

various professional organizations.11 For each of these categories of evidence, the AAO provided

a thorough, well-thought analysis explaining why the evidence did not demonstrate that Dr.

Viswanadha was internationally recognized as an outstanding researcher in the field.

While the Plaintiffs may disagree with some of USCIS’s conclusions, this does not mean

that the conclusions were arbitrary, capricious, or unsupported by substantial evidence. Rather,

as shown above, the USCIS conducted a thorough analysis, considered the relevant factors, and

reached a reasonable conclusion. Accordingly, even though Dr. Viswanadha is a “skilled

biomedical researcher” who has produced valuable work (R. 12), that is not the same as being

“internationally recognized” as outstanding under the statute and the Court must uphold USCIS’s

reasonable decision to deny Zimmer’s petition. See Boucher v. United States Dep’t of Agric., 934

F.3d 530, 547 (7th Cir. 2019) (when considering if an agency’s decision was arbitrary or

matter expertise” did not provide strong support “because possessing expertise in a given field is a considerably

lower threshold than being recognized internationally within the academic field as outstanding.” (R. 6–7.)

10 The AAO found that Dr. Viswanadha’s articles and the citations to those articles did not demonstrate outstanding

achievement in the academic field. The AAO noted that authoring scholarly articles is “often inherent to the work of

professors and researchers” but that the number of citations could be an indicator to determine whether the applicant

was internationally recognized as outstanding. However, the AAO concluded that the petitioner failed to show that

Dr. Viswanadha was recognized internationally as outstanding in biology because she did not submit “comparative

statistical evidence indicating how often others in the Beneficiary’s field are cited,” did not show that the citations

that existed weren’t from herself, and the articles which did cite to her work did not “distinguish or highlight” her

research. (R. 10–11.)

11 The AAO concluded that the fellowship, impact awards, and membership in professional organizations did not

demonstrate that Dr. Viswanadha was recognized internationally as outstanding in cell biology. (R. 11–12.) First,

the AAO concluded that the fellowship funded “research and clinical training for promising students,” which did not

demonstrate she was internationally recognized as outstanding in cell biology. (Id.) Next, the AAO concluded that

the impact awards were provided by her employer and reflected “internal recognition rather than international

recognition in her field.” (R. 11.) Finally, the AAO concluded that there was no evidence that the professional

organizations “require[d] outstanding achievements of their members or that acceptance into their membership

signifies international recognition in the Beneficiary’s academic field.” (R. 12.)

capricious, a court “must uphold the action if the agency considered all the relevant factors and

we can discern a rational basis for the agency’s choice”).

D. Conclusion

For the reasons stated above, the Court DENIES Plaintiffs motion for summary

judgment. (DE 24.) The Court GRANTS Defendants’ cross motion for summary judgment. (DE

27.) Judgment is entered in favor of the Defendants and the Clerk is directed to close the case.

SO ORDERED.

ENTERED: March 8, 2023

/s/ JON E. DEGUILIO

Chief Judge

United States District Court