SONI v. UNITED STATES OF AMERICA et al
OPINION fld. Signed by Judge Madeline C. Arleo on 8/2/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 11-2431
UNITED STATES OF AMERICA, et al.,
ARLEO, UNITED STATES DISTRICT JUDGE
This matter comes before the Court by way of Defendants United States of America; Janet
Napolitano, Secretary of the Department of Homeland Security; United States Citizenship and
Immigration Services (“USCIS”); and Angela K. Barrow, Acting Director of Texas Service
Center’s (collectively, “Defendants”) motion for summary judgment. Dkt. No. 53. Pro se Plaintiff
Ajay Soni (“Soni” or “Plaintiff”) did not file any opposition to the motion.1 For the reasons set
forth below, Defendants’ motion is GRANTED.
This case seeks review of USCIS’s denial of Plaintiff’s employment-based immigrant visa
petition under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 706(2)(A).
Defendants’ motion for summary judgment was filed on April 8, 2016, more than three months
ago. On May 24, 2016, Plaintiff’s pro bono counsel, Susheel Verma, Esq. (“Ms. Verma”), moved
to withdraw due to a breakdown in attorney-client communication. Dkt. No. 57. The motion was
granted on June 9, 2016. Dkt. No. 59. On June 15, 2016, Ms. Verma advised Plaintiff that the
motion to withdraw had been granted, and that Plaintiff was no longer represented by an attorney
in this matter. Dkt. No. 60. She also advised Plaintiff, via overnight express mail to his home
address and several e-mail exchanges, that the deadline to file opposition to the pending motion
was June 24, 2016. Id. Plaintiff did not file any subsequent papers with the Court.
Plaintiff is a native and citizen of India. Administrative Record (“A.R.”) 46, Dkt. Nos. 4243. In May 2006, Soni obtained a Ph.D. in International Business from Atlantic International
University (“AIU”), an online university that is not accredited by the U.S. Department of
Education. A.R. 1236, 1279. On August 10, 2006, Soni entered the United States on an H-1B
non-immigrant visa. A.R. 47.
On April 15, 2008, Soni filed his first Form I-140, Immigrant Petition for Alien Worker
(“First Petition”) with USCIS, seeking classification as an alien who has “extraordinary ability in
the sciences, arts, education, business, or athletics.” A.R. 1389, 1553-55. Additionally, on or
about the same date, Soni filed his first Form I-485, Application to Adjust Status (“First
Adjustment Application”), seeking to reside permanently in the United States. A.R. 1985-89.
USCIS reviewed Soni’s First Petition and, on June 15, 2009, issued a Request For Evidence
(“RFE”) to Soni for additional information to assess his eligibility for the EB-1 immigrant
classification. A.R. 1890-91. In the RFE, and in accordance with EB-1 regulations, USCIS
directed Soni to submit additional evidence demonstrating that he “has sustained national or
international acclaim and recognition for achievements in the field of expertise” and that he “is
one of the small percentage of individuals who have risen to the very top of the field of endeavor.”
A.R. 1890-91. Soni responded to the RFE on July 22, 2009. A.R. 1892-1943.
On November 27, 2009, USCIS denied Soni’s First Petition for the highly-restrictive EB1 immigrant classification. A.R. 1293-97. USCIS found that Soni failed to establish that he “has
sustained national or international acclaim and recognition for achievements in the fields of
science, education, business, or athletics” because his evidence did not demonstrate that he has
received a major, internationally recognized award, or that he meets at least three of the ten
evidentiary criteria specified in 8 C.F.R. § 204.5(h)(3). A.R. 1293-97. Soni appealed the denial
of his First Petition to the USCIS’s Administrative Appeals Office (“AAO”), which dismissed the
appeal on December 28, 2010. A.R. 1106-15.
On January 20, 2011, USCIS issued a decision denying Soni’s First Adjustment
Application because his visa petition had not been approved. A.R. 1955-56, 1985. On January
24, 2011, Soni filed a motion to reopen the denial of the First Petition, A.R. 1100-05, and on
February 7, 2011 he filed a motion to reopen the denial of the First Adjustment Application, A.R.
1952-54. USCIS denied both motions on March 31, 2011. A.R. 1945-46, 1961-63, 1965. On
April 27, 2011, Soni filed the instant complaint under the APA, challenging the denials of his First
Petition and First Adjustment Application as arbitrary, capricious, and an abuse of discretion.
Compl. ¶¶ 1, 4, 8, Dkt. No. 1.
On February 6, 2012, the Court granted the parties’ joint motion to place the litigation in
abeyance pending USCIS’s adjudication of Soni’s motion to reopen. Dkt. No. 13. On May 19,
2011, Soni filed a second petition (“Second Petition”) and adjustment of status application
(“Second Adjustment Application”), several appeals to the AAO, and numerous motions to reopen,
reinstate, or reconsider. See A.R. 46-51, 76-80, 86-90, 92-96, 121-24, 159-68, 293-302, 304-08,
530-74, 1293-97, 1384-88, 1390-96, 1542-46, 1553-55, 2013-25, 2072-78, 2659-85.
reviewing Soni’s additional submissions, USCIS denied his Second Petition and Second
Adjustment Application on March 16, 2013, and August 5, 2013, respectively. A.R. 42, 159-68,
2072. On January 20, 2014, Soni filed a motion in this Court to reopen the complaint. Dkt. No.
14. Four days later he filed a third petition (“Third Petition”) and adjustment of status application
(“Third Adjustment Application”). A.R. 2072-78, 2689-94.
On June 24, 2014, the Court granted Soni’s motion to reopen the case. Dkt. No. 15. On
August 7, 2015, USCIS reopened Soni’s Third Petition and issued a RFE to afford Soni a final
opportunity to submit additional evidence in support of his Third Petition. CAR 2659-77. On
August 26, 2015, Soni submitted evidence in response to the RFE. CAR 2652-58.
After reviewing Soni’s newly submitted evidence, USCIS again determined that he did not
qualify for the highly-restrictive EB-1 nonimmigrant classification. A.R. 2625-51. USCIS
concluded that the evidence failed to establish that Soni has received a major, internationally
recognized prize or award, A.R. 2628, or has received “sustained national or international
acclaim,” A.R. 2648-49. In addition, USCIS determined that Soni only satisfied one of the ten
regulatory criteria set forth in 8 C.F.R. § 204.5(h)(3), instead of the three out of ten that are required
for qualification as an alien of extraordinary ability. A.R. 2635-37.
On September 2, 2015, USCIS issued its final decisions, denying Soni’s Third Petition,
and denying Soni’s Third Adjustment Application on the basis that he was not a beneficiary of an
approved visa petition. A.R. 2687-89; see 8 U.S.C. 1255(a), 8 C.F.R. § 245.1(a). On April 18,
2016, Defendants filed the instant motion. Dkt. No. 53.
II. LEGAL STANDARD
The APA provides for judicial review of final agency actions. See 5 U.S.C. §§ 702, 704.
Because a court’s review under the APA is limited to the administrative record on which the
agency action was based, the usual standard for summary judgment under Fed. R. Civ. P. 56 does
not apply. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89–90 (D.D.C. 2006). Instead, in
APA cases, “the function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.” Id.
(internal citations omitted). In doing so, the Court may hold unlawful and set aside agency action
only if it finds the action to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A).
The scope of review under the arbitrary and capricious standard “is a narrow one.”
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974). To assess
whether an agency has acted arbitrarily or capriciously, a court should consider whether the agency
has relied on factors which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that 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. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court is not empowered to substitute its judgment
for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Instead, the court must
consider whether the agency’s action was based on a consideration of the relevant factors and
whether there has been a clear error of judgment. Id. Under this standard, the agency is afforded
“due substantial deference” that “presume[s] the validity of the agency action.” SBC Inc. v. Fed.
Commc’n Comm’n, 414 F.3d 486, 496 (3d Cir. 2005) (citations omitted).
The Court must decide whether USCIS acted reasonably, in accordance with 8 U.S.C. §
1153(b)(1), its regulations, and with its own precedent, in denying Soni’s petition seeking an EB1 visa preference as an alien with extraordinary ability who has sustained national or international
acclaim, and whose achievements have been recognized in the business field through extensive
documentation . The Court finds that USCIS did not act arbitrarily, capriciously, or unlawfully in
denying Plaintiff’s Third Petition based on Plaintiff’s failure to prove extraordinary ability.
“[E]xtraordinary ability” is defined 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.” 8 C.F.R.
§ 204.5(h)(2). The extraordinary ability designation is thus extremely restrictive. See, e.g, Lee v.
Ziglar, 237 F. Supp. 2d 914, 915 (N.D. Ill. 2002) (finding that “arguably one of the most famous
baseball players in Korean history” did not possess the requisite extraordinary ability as a baseball
coach). To prove extraordinary ability, an alien must meet one of two threshold burdens. First, the
alien can provide evidence of “a one-time achievement (that is, a major, internationally recognized
award).” 8 C.F.R. § 204.5(h)(3). Alternatively, an alien can provide evidence of at least three of
ten types of lesser achievements enumerated in the regulations. See id. The burden of proof rests
with the alien to establish by a preponderance of the evidence that he is fully qualified for the
benefit sought. Because USCIS reasonably concluded that Soni did not submit evidence meeting
either burden, the Court must affirm the agency’s decision and grant Defendants’ motion for
A. One-Time Achievement
Upon review of Soni’s petition, USCIS determined that the “evidence does not show that
the beneficiary has received a major, internationally recognized prize or award.”2 A.R. 2628.
Plaintiff does not allege he received such a prize or award. See Compl., Cause of Action ¶¶ 1-9.
Accordingly, USCIS did not abuse its discretion by rejecting Soni’s petition on this basis.
B. Alternative Criteria
An alien who cannot demonstrate evidence of a major, internationally recognized award
may alternatively show that that he meets at least three of the ten regulatory criteria set forth in 8
C.F.R. § 204.5(h)(3)(i)-(x). USCIS determined that Soni meets criterion number four, but does
not meet the nine other criteria. See A.R. 2625-51. Soni challenges USCIS’s analysis of the
evidence under three of the ten regulatory criteria listed in 8 C.F.R. § 204.5(h)(3)(i-x); specifically,
“Receipt of the Nobel Prize is the quintessential example of a major award.” Kazarian v. U.S.
Citizenship & Immigration Servs., 596 F.3d 1115, 1119 (9th Cir. 2010) (citing H.R. Rep. No. 101723 (I & II) (1990)).
criteria number two, four, and five.3 See Compl., Cause of Action ¶¶ 2-6. Each of Soni’s
challenges lacks merit.
1. The Second Criterion: Membership in Associations Which Require Outstanding
The second criterion is satisfied by “[d]ocumentation of the alien’s membership in
associations in the field for which classification is sought, which require outstanding achievement
of their members . . . .” 8 C.F.R. § 204.5(h)(3)(ii). Soni contends that USCIS erred in finding that
he failed to meet the second criterion because it did not properly weigh his “achievements as a
PMP and Sigma Six certified professional.” Compl., Cause of Action ¶ 4. As a threshold matter,
Soni acquired these certifications after the petition filing date, so USCIS could not consider them
as evidence. See 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg’l
Comm’r 1971). However, even if Soni’s certifications were timely, USCIS nonetheless provided
a rational and non-arbitrary explanation for determining that the certifications do not satisfy the
USCIS found that the Project Management Institute (“PMI”) does not require outstanding
achievements for individuals to obtain Project Management Professional (“PMP”) certification.
See A.R. 2629. A PMP certification from PMI is a professional credential that demonstrates that
the individual possesses project management knowledge, experience, and skills. Obtaining PMP
USCIS concluded that Soni did not submit evidence pertaining to criteria 1, 3, 7, 9, or 10, and
therefore failed to prove his eligibility for a visa on these bases. See A.R. 2627-49. Soni does not
object to these findings. See Compl. To the extent Soni challenges USCIS’s determination that
he does not meet criteria 6 and 8, these arguments are meritless for the same reasons underpinning
the Court’s analysis of the fifth criterion. Satisfaction of the sixth and eighth criteria turns on the
scholarly value of Soni’s Ph.D. thesis, see 8 C.F.R. § 204.5(h)(3)(vi), and the reputation of
organizations he has worked for, see 8 C.F.R. § 204.5(h)(3)(viii), both of which rely on
substantially the same evidence that Soni submitted to prove eligibility under criterion five, see
A.R. 2637-49. For the reasons Soni does not meet his burden of proof under the fifth criterion, he
could not meet his burden under the sixth and eighth criteria.
certification merely requires individuals to pay a fee and undergo an application process, possess
education and experience, and take and pass a multiple-choice examination consisting of 175
scored questions; recipients are not required to demonstrate outstanding achievement. See A.R.
2629-30. In its decision, USCIS reasoned that “[m]embership requirements based on employment
or activity in a given field, minimum education or experience, standardized test scores, grade point
average, recommendations by colleagues or current members, or payment of dues do not satisfy
this criterion as such requirements do not constitute outstanding achievements.” See A.R. 2629.
Soni’s Six Sigma Black Belt certification was deemed inadequate for similar reasons.
USCIS found that the certification is awarded to students who “pay a fee and complete lessons,
quizzes, simulated project deliverables and tollgate reviews, and take and pass an examination.”
A.R. 2631. After examining the certifying institute’s website, USCIS found no indication that Six
Sigma Black Belt certification required outstanding achievements, nor did it appear that the
institution “uses recognized national or international experts in their disciplines or fields to judge
the eligibility . . . .” A.R. 2631. Moreover, USCIS found that Soni “did not submit any information
from Acuity Institute which explains the criteria for obtaining Six Sigma Black Belt certification
. . . .” A.R. 2631.
Because USCIS articulated a rational relationship between the evidence and its
conclusions, and made no clear error in judgment, the Court finds that it acted within its broad
statutory discretion. See Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989).
2. The Fourth Criterion: Participation as a Judge of Others’ Work in the Field
Next, Soni argues that USCIS erred when “[i]t did not consider review of one article
sufficient” to meet the fourth criterion. Compl., Cause of Action ¶ 3. This argument is irrelevant
because USCIS determined that Soni’s evidence did meet the fourth criterion. See A.R. 2635-37.
Soni prevailed here. Accordingly, USCIS’s analysis under the fourth criterion does not provide
grounds for overturning the agency’s decision.
3. The Fifth Criterion: Original Contributions of Major Significance in the Field
Finally, Soni contends that USCIS erred in finding him ineligible under the fifth criterion.
The fifth criterion is satisfied by “[e]vidence of the alien’s original . . . contributions of major
significance in the field.”
8 C.F.R. 204.5(h)(3)(v).
Specifically, Soni argues that USCIS
“arbitrarily decided that the educational material authored by the plaintiff for an educational
institution was not published work,” Compl., Cause of Action ¶ 2, arbitrarily “evaluat[ed] the value
of the plaintiff’s Ph.D. thesis,” id. ¶ 5, and failed to evaluate “significant documentation concerning
his role in developing a system/procedure utilized by Merck in enhancement of life saving
procedures,” id. ¶ 6. USCIS, however, thoroughly analyzed Soni’s evidence and adhered to the
relevant regulatory language in finding that Soni had not proven eligibility under the fifth criterion.
USCIS found that Soni’s evidence purporting to demonstrate the original contributions of
his Ph.D. thesis was so vague that it lacked probative value. Soni submitted several letters
discussing his thesis which failed to “identify any examples of whether the beneficiary made
original contributions of major significance to the field.” A.R. 2638. USCIS found that the letters
only contained general assertions regarding Plaintiff’s thesis. See A.R. 2477-92,2638. For
example, one letter states that the thesis was “unique and valuable to the field.” A.R. 2638.
Another letter states that the “thesis work was outstanding, original and valuable to the field.” Id.
A third letter claims the “thesis work . . . is unique and extraordinary where he has defined some
research methodologies which has been rarely used. He did an extensive research on International
Trade laws and the cultural aspects used by global companies to see a product globally.” Id.
Conclusory statements about the value of Soni’s thesis or other contributions to his field
are “not sufficient for purposes of meeting his burden of proof in these proceedings.” In re Soffici,
22 I. & N. Dec. 158, 165 (BIA 1998) (citation omitted). USCIS’s finding that Soni did not submit
“any specific examples of how [his] thesis is considered an original contribution of major
significance in the field” is therefore a reasonable basis for finding that the thesis does not satisfy
the fifth criterion. See A.R. 2638.4 Based on USCIS’s thoroughly articulated examination of
Soni’s evidence, the Court cannot say it made a “clear error of judgement” required to overturn its
decision. Volpe, 401 U.S. 402, 416 (1971).
Likewise, the evidence Plaintiff submitted regarding his role developing systems used by
Merck failed to “provide specific examples of how the beneficiary contributed to the project.”
A.R. 2641. The evidence only describes Soni’s work for Merck in general terms such as vital,
efficient, effective, outstanding, unique, extraordinary, critical, and leading. See A.R. 1976, 2386,
“None of the evidence includes any information regarding the beneficiary’s
employment on a project at Merck Laboratories.”5 A.R. 2648. Accordingly, USCIS found that
the evidence did not provide any adequate examples of how Plaintiff’s work for Merck is
considered an original contribution of major significance. A.R. 2641. As previously explained, a
dearth of supporting evidence is an appropriate reason for USCIS to discount Soni’s conclusory
statements. See, e.g., Visinscaia v. Beers, 4 F. Supp. 3d 126, 134-35 (D.D.C. 2013). Accordingly,
the USCIS’s decision that Plaintiff failed to meet the fifth criterion on this basis was not arbitrary.
After conducting a comprehensive review of the underlying evidence in the administrative
record below and of AAO’s reasoning in its final decision, the Court finds USCIS acted reasonably
USCIS also found that the “petitioner did not submit any evidence to establish that his thesis was
published, whether in any journals in the field, professional or major trade publications, or other
major media.” A.R. 2639; see 8 C.F.R. 204.5(h)(3)(vi).
Moreover, “none of the evidence indicates the beneficiary performed in a leading or critical role
for organizations or establishments that have a distinguished reputation.” A.R. 2648; see 8 C.F.R.
in accordance with 8 U.S.C. § 1153(b)(1), its regulations, and with its own precedent in denying
Soni’s petition for EB-1 status. Accordingly, because Soni cannot carry his burden of showing
USCIS’s decision was arbitrary, capricious, or contrary to law, Defendants’ motion for summary
judgment is GRANTED. An appropriate order accompanies this opinion.
Date: August 2, 2016
/s Madeline Cox Arleo__________
MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE
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