# Amin v. Mayorkas

> Court of Appeals for the Fifth Circuit · January 24, 2022 · 24 F.4th 383

URL: https://www.frixlaw.com/law-library/cases/6112187

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 24, 2022
- **Citations:** 24 F.4th 383
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** United States Civil
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6112187

## How later opinions describe it (automated extraction)

- finding that the Policy Memo “is valid without notice and comment” as it “merely clarifies the order in which agency adjudicators evaluate the evidence”
- noting that the view that the APA’s judicial review provisions are limits on subject matter jurisdiction “may be out of step with recent Supreme Court rulings clarifying that a statue is ‘jurisdictional’ only if Congress says so”

## Opinion text

Case: 21-20212 Document: 00516177817 Page: 1 Date Filed: 01/24/2022

United States Court of Appeals
for the Fifth Circuit

No. 21-20212

Bhaveshkumar Amin,

Plaintiff—Appellant,

versus

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.

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,
Case: 21-20212 Document: 00516177817 Page: 2 Date Filed: 01/24/2022

No. 21-20212

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_

2
Case: 21-20212 Document: 00516177817 Page: 3 Date Filed: 01/24/2022

No. 21-20212

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:

3
Case: 21-20212 Document: 00516177817 Page: 4 Date Filed: 01/24/2022

No. 21-20212

(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.

4
Case: 21-20212 Document: 00516177817 Page: 5 Date Filed: 01/24/2022

No. 21-20212

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 Manual1 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

1
The Adjudicator’s Field Manual is a “comprehensive ‘how to’ manual detailing
policies and procedures for all aspects of [USCIS’s] Adjudications Program.” U.S.
Citizenship & Imm. Servs., Dep’t of Homeland Sec., Adjudicator’s
Field Manual § 1.1. USCIS is in the process of migrating the Adjudicator’s Field
Manual and other agency policy documents to a centralized, online repository called the
Policy Manual. Policy Manual, U.S. Citizenship & Imm. Servs., Dep’t of
Homeland Sec. (Oct. 29, 2021), https://www.uscis.gov/policy-manual (describing the
transition and linking to the new database).

5
Case: 21-20212 Document: 00516177817 Page: 6 Date Filed: 01/24/2022

No. 21-20212

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

6
Case: 21-20212 Document: 00516177817 Page: 7 Date Filed: 01/24/2022

No. 21-20212

judgment. It credited the agency’s “thorough reasoning for why the Service
came to the conclusions it did for each criteria” and explained that “[m]erely
disagreeing with the Service’s conclusions about the evidence is insufficient
to make them arbitrary and capricious.” It further held that Amin knew the
agency used the two-step framework and did not show that approach was
invalid.
II
As a threshold matter, we consider whether Amin’s claim is
unreviewable because he failed to appeal the visa denial to USCIS’s
Administrative Appeals Office before filing suit. The Administrative
Procedure Act, under which Amin brought suit, allows judicial review only
of final agency actions. See 5 U.S.C. § 704. Agency action like the visa denial
here is final unless administrative appeal is “expressly required by statute”
or the agency “requires [exhaustion] by rule and provides that the action
meanwhile is inoperative.” Id.; see Darby v. Cisneros, 509 U.S. 137, 146–47
(1993) (explaining that courts cannot require administrative appeal when not
required by statute or regulation). Our precedent treats the APA’s judicial
review provisions as limits on subject matter jurisdiction.2 People’s Nat’l

2
This view may be out of step with recent Supreme Court rulings clarifying that a
statute is “jurisdictional” only if Congress says so. Arbaugh v. Y & H Corp., 546 U.S. 500,
510 (2006); see also Davis, 139 S. Ct. at 1849 (holding that the exhaustion requirement for
Title VII suits is not jurisdictional). The APA does not state that its finality requirement
is jurisdictional, so other circuits have held that it is not. See, e.g., Jama v. DHS, 760 F.3d
490, 494 (6th Cir. 2014); Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118, 125 n.11 (3d Cir.
2012); Lee v. USCIS, 592 F.3d 612, 619 (4th Cir. 2010); Sharkey v. Quarantillo, 541 F.3d
75, 84 (2d Cir. 2008); Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir. 2007); Trudeau v.
FTC, 456 F.3d 178, 185 (D.C. Cir. 2006).
We recently overruled precedent treating a requirement in another area of law as
jurisdictional, explaining that the Supreme Court’s attempts to confine the jurisdictional
category “fundamentally changes” the analysis of whether a requirement affects a court’s

7
Case: 21-20212 Document: 00516177817 Page: 8 Date Filed: 01/24/2022

No. 21-20212

Bank v. Off. of Comptroller of Currency, 362 F.3d 333, 336 (5th Cir. 2004). We
thus must raise the issue of Amin’s noncompliance on our own initiative.
Fort Bend Cnty. v. Davis, 139 S. Ct. 1834, 1849 (2019) (noting that “[u]nlike
most arguments, challenges to subject-matter jurisdiction” may be raised at
any time by the parties and “courts must consider them sua sponte”).
The jurisdictional question thus turns on whether Amin was required
to appeal the visa denial to the agency’s Appeals Unit. USCIS regulations
provide that “[t]he denial of a petition for classification [as a noncitizen with
extraordinary ability] shall be appealable to the Associate Commissioner for
Examinations.”3 8 C.F.R. § 204.5(n)(2). At first glance, the word “shall”
seems to mandate exhaustion. See Murphy v. Smith, 138 S. Ct. 784, 787
(2018) (“[T]he word ‘shall’ usually creates a mandate.”).
But we do not read a word in isolation; we must look at the “specific
context in which that language is used.” Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997). If the regulation stated that a classification “shall be
appealed,” then exhaustion would be mandatory. Cf. Dresser v. Meba Med. &
Benefits Plan, 628 F.3d 705, 710 (5th Cir. 2010) (finding administrative appeal
mandatory when regulation said that the NTSB “shall review” initial
agency decisions). But this regulation does not. It provides that the
classification “shall be appealable.” 8 C.F.R. § 204.5(n)(2) (emphasis
added). The most natural reading, then, is that the regulation allows but does
not mandate appeals from extraordinary ability visa denials. See Appealable,

authority to hear a case. In re Bonvillian Marine Serv., Inc., 19 F.4th 787 (5th Cir. 2021)
(overruling precedent holding that the six-month time limit for bringing a limitation of
liability action is jurisdictional). But because we conclude there is no mandatory exhaustion
requirement for the visa denial challenge here, we need not consider whether our precedent
treating the finality requirement as jurisdictional survives.
3
The Associate Commissioner for Examinations delegated this authority to
USCIS’s Administrative Appeals Unit. 8 C.F.R. § 103.3(a)(iv).

8
Case: 21-20212 Document: 00516177817 Page: 9 Date Filed: 01/24/2022

No. 21-20212

Black’s Law Dictionary (11th ed. 2019) (defining “appealable” as
“capable of being appealed”). It would not make sense to use the permissive
“may” in this context; “may be appealable” would leave doubt about
whether an applicant could in fact appeal up the agency chain. “Shall be
appealable” is thus best read as permitting but not requiring applicants to
seek further agency review before undergoing the delay and expense of a
federal lawsuit.
This reading is bolstered by comparing the regulation to immigration
laws that unambiguously require exhaustion before judicial review. For
instance, the Immigration and Nationality Act says that “[a] court may
review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d); see Moreira v. Mukasey, 509 F.3d 709, 713 (5th Cir. 2007)
(declining to review removal order because BIA appeal was still pending).
Similarly, a USCIS regulation states that an agency denial of a naturalization
application “shall not be subject to judicial review until the applicant has
exhausted those administrative remedies available to the applicant under
section 336 of the [INA].” 8 C.F.R. § 336.9(d). The lack of similar language
here confirms that the agency did not intend the same result. See Meghrig v.
KFC Western, Inc., 516 U.S. 479, 484–85 (1996) (concluding that the
presence of specific language in one statute and absence of it in another meant
that Congress did not intend to create the same remedies through both).
Through section 704, Congress carefully “limited the availability of
the doctrine of exhaustion [in APA cases] to that which the statute or rule
clearly mandates.” Darby, 509 U.S. at 146. Because 8 C.F.R. § 204.5(n)(2)
does not clearly require administrative appeal, we have jurisdiction despite
Amin’s failure to exhaust administrative remedies.

9
Case: 21-20212 Document: 00516177817 Page: 10 Date Filed: 01/24/2022

No. 21-20212

III
The APA requires us to “hold unlawful and set aside” agency action
that is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2). 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. See Univ. Med. Ctr. Of S. Nevada v. Shalala, 173 F.3d 438, 440 n.3
(D.C. Cir. 1999).
Amin raises two procedural challenges to the framework the agency
used to evaluate his application. First, he argues that the Policy Memo is
“not in accordance with law” because it conflicts with the regulation.
Second, he asserts that the Policy Memo is invalid because it was issued
without notice and comment. Because these questions overlap, we address
them together.4
Recall that the Policy Memo provides for a two-step review process.
First, the agency determines whether the applicant’s evidence meets the
parameters of the regulatory criteria. Policy Memo, at 3. If the applicant
proved at least three, the agency conducts an “overall merits determination”
to decide whether the applicant is one of the few at the top of their field. Id.
Amin asserts that once an applicant meets three of the ten regulatory criteria,

4
The government argues that Amin forfeited his procedural challenge to the Policy
Memo by failing to include it in his complaint. Forfeiture generally does not apply when a
claim is “raised or decided” in the district court. FDIC v. Mijalis, 15 F.3d 1314, 1326 (5th
Cir. 1994). Amin did not forfeit his procedural challenge because the issue was briefed
below, and the district court ruled on it.

10
Case: 21-20212 Document: 00516177817 Page: 11 Date Filed: 01/24/2022

No. 21-20212

the regulation shifts the burden to the government to explain why the
applicant has not demonstrated extraordinary ability.5
The agency’s reading is consistent with the governing statute and
regulation.6 The regulation does not say that meeting the regulatory criteria
presumptively qualifies an applicant for a visa. It addresses what evidence
must “accompany[]” a petition. 8 C.F.R. § 204.5(h)(3). As most college
applicants learn, submitting all the required application materials does not
guarantee a favorable decision. What is more, the regulation labels the
categories “Initial evidence” and states that applicants must submit
evidence of “at least three” criteria. Id. (emphasis added). This word choice
contemplates another step beyond submitting the enumerated evidence: if
satisfying three criteria were enough, why would the agency invite proof of
more? As we read it, the regulation’s “initial evidence" provision provides
color to the statute’s “extensive documentation” requirement. See 8 U.S.C.
§ 1153(b)(1)(A). And the final merits determination speaks to the statute’s

5
The Eastern District of Michigan took this approach in Buletini v. INS, 860 F.
Supp. 1222 (E.D. Mich. 1994). Amin claims that USCIS uniformly followed Buletini prior
to issuing the Policy Memo in 2010. But he cites only a 1993 letter from a former INS
Acting Assistant Commissioner for Examinations and an Illinois district court case noting
the agency’s failure to explain why an applicant’s evidence did not meet the extraordinary
ability standard. He does not contend that USCIS ever promulgated a rule or adopted a
uniform policy embracing Buletini.
6
We defer to an agency’s interpretation of its own regulations when the
regulation’s text is “genuinely ambiguous,” and the “character and context of the agency’s
interpretation entitles it to controlling weight.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414
(2019). If those conditions are met, the agency’s view controls unless “plainly erroneous
or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). We need
not decide whether the Policy Memo is entitled to controlling weight because the
government is not arguing that it is. And because we conclude that the agency’s approach
is consistent with the statute and regulation, the result is the same as if we had 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”).

11
Case: 21-20212 Document: 00516177817 Page: 12 Date Filed: 01/24/2022

No. 21-20212

requirement of “extraordinary ability which has been demonstrated by
sustained national or international acclaim.” Id. Amin’s view is unmoored
from the statute in not requiring an applicant to prove that essential
requirement.
For largely these same reasons, the Policy Memo is valid without
notice and comment. An agency must provide the public with notice and an
opportunity to comment before it issues a final, legislative rule. 5 U.S.C.
§ 553(b), (c). Notice and comment is not required, however, for
“interpretive rules, general statements of policy, or rules of agency
organization, procedure, or practice.” Id. § 553(b)(A). To determine
whether a rule is legislative, we consider “whether the rule (1) ‘impose[s]
any rights and obligations’ and (2) ‘genuinely leaves the agency and its
decision-makers free to exercise discretion.’” Texas v. United States, 809
F.3d 134, 171 (5th Cir. 2015) (quotations omitted).
The Policy Memo does not impose any obligations on visa applicants.
The statute and regulation require applicants to prove their extraordinary
ability and to provide “extensive documentation” of the type listed in the
regulation. The Policy Memo does not require anything more; it merely
clarifies the order in which agency adjudicators evaluate the evidence.
Contrast Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 618–20 (5th Cir. 1994)
(concluding that agency document that “developed new criteria” for valuing
natural gas liquid products was legislative rather than interpretive).
Precedent confirms that agency documents like the challenged field
manual can be issued without notice and comment. We held that a Veterans
Administration manual similar to this one lacked the force of law. United
States v. Harvey, 659 F.2d 62, 64–65 (5th Cir. Unit B 1981). Both manuals
are internal publications intended to provide guidance to employees
implementing agency policies. Compare id. at 63 (describing the VA manual

12
Case: 21-20212 Document: 00516177817 Page: 13 Date Filed: 01/24/2022

No. 21-20212

as “an internal agency publication issued to employees engaged in loan
servicing operations to provide procedural information and policy
guidelines”), with Policy Memo, at 1 (explaining that the purpose of the
amendment to the AFM is to ensure that extraordinary ability applications
are adjudicated under a consistent standard). And both are phrased in
permissive language. Harvey, 659 F.2d at 64; Policy Memo, at 5.
Other courts have applied the same logic to conclude that other
portions of this USCIS manual do not create enforceable rights. See, e.g.,
Diaz v. USCIS, 499 F. App’x 853, 855 (11th Cir. 2012) (per curiam) (finding
the manual’s direction to immigration officers to allow I-130 petitioners to
explain material inconsistencies in their applications nonlegislative);
Almakalani v. McAleenan, 527 F. Supp. 3d 205, 221–22 (E.D.N.Y. 2021)
(finding the manual’s determination that certain civil documents from
Yemen are insufficient to establish claimed familial ties nonlegislative).
Because the Policy Memo does not create legal rights or obligations, it is not
a legislative rule subject to the notice-and-comment requirement.
IV
With the procedural questions decided, we reach Amin’s substantive
challenge. Amin alleges that USCIS acted arbitrarily at both steps of its
analysis. Because the agency considered Amin’s evidence and explained why
it does not meet the regulatory standard, we disagree.
To survive an arbitrary and capricious challenge, the agency must
“articulate a satisfactory explanation for its action including ‘a rational
connection between the facts found and the choice made.’” Motor Vehicles
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quotation omitted). Agency action is arbitrary and capricious if the agency
relied on factors that Congress did not intend it to consider, failed to consider
an important aspect of the problem, or offered an explanation counter to the

13
Case: 21-20212 Document: 00516177817 Page: 14 Date Filed: 01/24/2022

No. 21-20212

evidence. Id. This inquiry is “narrow.” Id. at 43. Our task is merely to ask
whether the agency considered the relevant facts and articulated a
satisfactory explanation for its decision; we cannot substitute our judgment
for the agency’s. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019).
When the arbitrary and capricious standard is invoked to question the
factual basis for an agency’s conclusions, our review is functionally the same
as the “substantial evidence” test used to evaluate formal agency action
under 5 U.S.C. § 706(2)(E). As then-Judge Scalia explained, “[w]hen the
arbitrary and capricious standard is performing th[e] function of assuring
factual support, there is no substantive difference between what it requires
and what would be required by the substantial evidence test, since it is
impossible to conceive of a ‘nonarbitrary’ factual judgment supported only
by evidence that is not substantial in the APA sense.” See Ass’n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745 F.2d
677, 683–84 (D.C. Cir. 1984).
A
We first consider the agency’s determination of how many of the ten
regulatory criteria applied to Amin.7 The parties agree that Amin’s evidence
satisfies three: judging the work of others, holding a leading role in industry
organizations, and earning a high salary relative to peers. Amin objects to
USCIS’s determination that he did not prove a fourth criterion: “original
scientific . . . or business-related contributions of major significance in the
field.” 8 C.F.R. § 204.5(h)(3)(v).

7
Because the agency determined Amin proved three of the criteria, it proceeded
to the final merits determination. Still, we review the agency’s step one analysis because if
Amin satisfies a fourth regulatory criterion, he has a stronger overall case for extraordinary
ability at the second step.

14
Case: 21-20212 Document: 00516177817 Page: 15 Date Filed: 01/24/2022

No. 21-20212

Amin identifies three accomplishments that he believes are
contributions of major significance to the field of chemical engineering. First,
he states that he was “instrumental” in designing the world’s first portable
sulfur-forming units. To show that his design impacted the field, Amin
submitted a letter from a former Enersul executive stating that the innovation
was a response to an industry need and earned Amin a promotion. The
agency considered the letter but gave it little weight because it did not explain
the design’s impact beyond Enersul.
Amin also cites his contributions to the first modularized well pads in
the Alberta Oil Sands. He offered several letters and news articles describing
the project, including a letter from a coworker calling the invention “industry
leading.” Notably, Amin included a letter from a project manager at the
China National Offshore Oil Corporation, describing how the company
“utilized Mr. Amin’s design and adopted similar strategies to build modules
in China . . . but that it had so far proved unsuccessful at achieving the same
efficiency.”
This letter is Amin’s best evidence because it addresses the impact of
his work beyond his own employer. Still, the agency found the letter
insufficient because it did not show widespread replication of the design.
Amin maintains that the fact that no other company has replicated his success
underscores how path-making his invention is. We do not doubt the value of
Amin’s invention. But the regulation demands “major” contributions to the
field, 8 C.F.R. § 204.5(h)(3)(v), and Amin cites no case where an invention
that was not adopted by even one industry actor met this standard. Cf.
Visincaia v. Beers, 4 F. Supp. 3d 126, 134 (D.D.C. 2013) (upholding agency
denial on criterion five because support letters claiming generally that
dancer’s technique was being widely used by competitors did not “provide[]
specific information relating to the impact of [applicant’s] dance technique
on the field as a whole”).

15
Case: 21-20212 Document: 00516177817 Page: 16 Date Filed: 01/24/2022

No. 21-20212

Finally, Amin cites his contributions to a high-efficiency, “walking”
drill rig capable of being moved from one well pad to another without being
disassembled. In an amended letter of support, Amin’s colleague Mihai Ion
states that he and Amin collaborated on the “industry first” design. Amin
also provided a Calgary Herald article stating that the rig improved Husky’s
drilling times, and an online article from industry publication JWN Energy
noting Husky’s new machine.
Amin is correct that the agency’s denial did not specifically address
his contributions to the drill rig. Total failure to consider important evidence
is a basis for setting aside agency action. Fritiofson v. Alexander, 772 F.2d
1225, 1234, 1237 (5th Cir. 1985) (finding the EPA acted arbitrarily when it
failed to analyze the cumulative impacts of a project on wetlands). But while
USCIS did not explicitly discuss the drill rig, it did acknowledge Ion’s letter
and address the DA2 Well Pad program, of which the rig was a part. And any
error on this point was harmless because Amin’s evidence does not show that
anyone beyond his company used (or even attempted to use) the rig design.
See Worldcall Interconnect, Inc. v. FCC, 907 F.3d 810, 818 (5th Cir. 2018)
(“[W]e will not reverse an agency action due to a mistake where that mistake
‘clearly had no bearing on . . . the substance of the decision reached.’”
(quoting Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir.
2001))).
USCIS considered Amin’s evidence and credited his
accomplishments but determined that he did not meet his burden of proving
that his designs were of “major significance” to his field. Because Amin does
not show that the agency failed to consider evidence or explain its reasoning,
the agency’s determination on criterion five was not arbitrary.

16
Case: 21-20212 Document: 00516177817 Page: 17 Date Filed: 01/24/2022

No. 21-20212

B
We next consider Amin’s challenge to the ultimate determination that
he did not show extraordinary ability. The agency looked at each of the
criteria Amin satisfied and explained why his accomplishments under each
merited little weight in the overall assessment. The agency’s overall
conclusion is familiar: although Amin provided great value to his employers,
the record does not demonstrate by a preponderance of the evidence “that
either the quality or quantity of [his] work is indicative of sustained national
or international acclaim” or that his “achievements have been recognized in
the field of expertise.”
That underlying standard—whether Amin showed extraordinary
ability—combines with our deferential arbitrary-and-capricious review to
create a daunting obstacle to the relief Amin seeks. Extraordinary ability is
such an elite level of accomplishment that recognizing it necessarily entails a
judgment call. Arguing that the agency was compelled to find extraordinary
ability is a bit like saying that the only possible grade on an exam was an A+.
Amin nonetheless maintains that his leadership in industry
organizations is ipso facto evidence of his recognition as a leader in his field.
He argues the same for his $342,000 salary and peer review experience. This
argument cannot be correct. If meeting the regulatory criteria was enough to
establish one’s acclaim, there would be no step two of the analysis. That
second step is the ultimate statutory inquiry of whether the applicant has
“extraordinary ability” as “demonstrated by sustained national or
international acclaim.” 8 U.S.C. § 1153(b)(1)(A). If the three criteria Amin
proved—leadership in an industry organization, a high salary, and peer
review experience—are enough to automatically show that acclaim, then the
“extraordinary ability” visa will look less like an Einstein visa and more like
a Lake Wobegon one.

17
Case: 21-20212 Document: 00516177817 Page: 18 Date Filed: 01/24/2022

No. 21-20212

The agency properly considered Amin’s accomplishments but found
them insufficient. Its determination reflects the reasoned consideration the
APA requires.
***
The judgment is AFFIRMED.

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6112187. Public record. Not legal advice.