Court: District Court, C.D. California; April 6, 2015; Federal District Court
The court granted the defendants’ motion for summary judgment and denied the plaintiff’s motion for summary judgment regarding Chung Hou Hsiao's application for lawful permanent resident status. Hsiao challenged the USCIS's denial of his Form I-485 applications under the Administrative Procedure Act, claiming his prior Form I-140 employment-based visa petitions filed in 1998 and 2000 were 'approvable when filed.'
Under the Immigration and Nationality Act, certain non-citizens can adjust their status from within the U.S., but must be in lawful immigration status at the time of application. Exceptions exist for individuals who are 'grandfathered' under section 245(i) if they can prove eligibility based on an appropriate petition filed before April 30, 2001.
For a petition to qualify under this provision, it must have been 'approvable when filed,' meaning it was properly submitted, factually valid, and not frivolous. This assessment relies on the conditions at the time of the petition's filing. If a petition that meets these criteria is later withdrawn or denied due to post-filing circumstances, the beneficiary may retain their grandfathered status. The ruling highlights that the employment-based visa categories relevant to Hsiao are EB-1 for 'aliens of extraordinary ability' and EB-2 for 'aliens with advanced degrees or exceptional ability,' typically requiring a job offer and employer initiation for visa applications.
The application process for obtaining lawful permanent residency through employment-based (EB) categories involves three main steps: (1) the employer submits a labor certification application to the U.S. Department of Labor (DOL), (2) the employer files a Form I-140 petition with USCIS to assess the individual's eligibility for EB classification, and (3) the individual files a Form I-485 application to adjust their status. The labor certification aims to confirm that there are insufficient qualified U.S. workers for the offered job. However, individuals eligible for EB-1 classification do not require a job offer or labor certification and can self-petition. For EB-2 classification, individuals may also bypass these requirements if USCIS determines that a waiver is in the national interest. To qualify for a national interest waiver, the applicant must demonstrate that their work has substantial intrinsic merit, benefits the nation broadly, and serves the national interest significantly more than a qualified U.S. worker.
The document details Mr. Hsiao's immigration journey. He is a Taiwanese citizen who arrived in the U.S. in 1993 on an F-1 visa and earned a master’s degree in electrical engineering in 1995. He filed his first Form I-140 petition in 1998 under the EB-2 category, seeking a national interest waiver, but it was denied in 1999 due to insufficient evidence supporting the waiver's necessity. Mr. Hsiao did not contest this decision. He subsequently filed a second Form I-140 petition in 2000, claiming EB-1 classification as an alien of extraordinary ability, but this was also denied in 2001, with the INS acknowledging his talent but ultimately concluding he did not meet the extraordinary ability criteria.
The evidence does not sufficiently demonstrate that the beneficiary has reached the pinnacle of his field, despite holding at least two patents and receiving the Longteng Prize for scientific technology design. The importance of these patents and the prize within the scientific community remains unclear, as does the competitive landscape for the prize. Membership in large organizations like IEEE and ACM does not imply exceptional achievement. Overall, the beneficiary is deemed a competent scientist but lacks sustained national or international recognition.
In 2012, Mr. Hsiao filed a third Form I-140 petition seeking EB-2 classification with a national interest waiver in solar technology, which USCIS approved on August 24, 2012. Subsequently, on November 1, 2012, he submitted a Form I-485 application to adjust his status to lawful permanent resident, arguing eligibility under the 'grandfathering' provision due to his prior I-140 petitions. USCIS issued a Notice of Intent to Deny (NOID) on January 25, 2013, stating that his earlier petitions were not approvable when filed. Mr. Hsiao contested this conclusion, referencing case law and regulatory definitions, but USCIS ultimately denied his adjustment application on February 28, 2013, citing that the denied petitions did not meet the 'approvable when filed' criteria. An administrative appeal was affirmed by USCIS on April 29, 2013.
On August 5, 2013, Mr. Hsiao submitted a second Form I-485 application seeking status adjustment under 8 U.S.C. 1255. USCIS issued a Notice of Intent to Deny (NOID) on October 1, to which Mr. Hsiao responded with further information. However, on November 25, USCIS denied the application, asserting that Mr. Hsiao was claiming eligibility as a grandfathered alien and that his supporting I-797 receipt notice pertained to a Form I-140 petition filed on his behalf in 1998, which had been denied in 1999. Consequently, USCIS determined the petition was not approvable at the time of filing. Mr. Hsiao filed a lawsuit on May 9, 2014, alleging violations of the Administrative Procedure Act (APA) regarding USCIS's denials. Cross Motions for Summary Judgment were filed on January 20, 2015, with subsequent oppositions and replies leading to a court hearing on April 3.
Under the APA, agency decisions are reviewed for arbitrariness and capriciousness, requiring a rational connection between the facts and the agency's choice, with a presumption of validity for agency actions. The district court's role is more akin to that of an appellate tribunal than a typical civil lawsuit, focusing on whether the administrative record supports the agency's decision and compliance with the APA.
The central issue is whether USCIS applied the correct legal standard in denying Mr. Hsiao's applications based on the non-approvability of his 1998 and 2000 Form I-140 petitions. Both parties agree that these petitions were properly filed and non-frivolous. The discussion revolves around whether the petitions were "meritorious in fact" at the time of filing and if USCIS should consider additional evidence provided by Mr. Hsiao that was not available during the initial evaluations of the petitions. Mr. Hsiao contends that USCIS wrongly concluded the petitions were not "meritorious in fact" solely based on their prior denials.
Defendants contend that USCIS's decision regarding Mr. Hsiao's case was justified for two reasons: (1) USCIS reviewed Mr. Hsiao's additional evidence but ultimately deemed his assertion that his pre-2001 petitions were 'approvable when filed' unsupported; and (2) the denials of his 1998 and 2000 petitions by INS establish that these petitions lacked merit since the denials did not relate to situations described in 8 C.F.R. 205.1(a)(3)(i) and (ii). The Court cannot ascertain whether USCIS genuinely considered Mr. Hsiao's additional evidence or solely relied on the prior INS denials. The language in the Notices of Intent to Deny (NOID) and the denials indicates that these past denials significantly influenced USCIS's determination. For analysis, the Court assumes USCIS primarily relied on the INS denials to conclude that Mr. Hsiao's pre-2001 petitions were not 'meritorious in fact.'
To evaluate potential legal error, the Court examines 8 C.F.R. 245.10(a)(3), which allows preservation of a beneficiary's grandfathered status for petitions that were 'approvable when filed' but later denied due to circumstances arising post-filing. The regulation specifies such circumstances, including withdrawal of the petition or changes in family relationships. Relevant case law, particularly Ogundipe v. Mukasey, illustrates that a petition's denial does not automatically imply it was not 'approvable when filed.' The Fourth Circuit recognized that 'meritorious' refers to a petition having legal worth, even if it was not ultimately successful. The court concluded that a visa petition is 'meritorious in fact' if the beneficiary met the classification criteria at the time of filing, and an individual can demonstrate a previously denied petition's merit during removal proceedings, subject to evidentiary rules.
The Fourth Circuit determined that Ogundipe did not qualify for a religious worker visa in 1997. In the case of Matter of Riero, Riero and Espinol claimed eligibility under 245(i) based on a visa petition filed by Riero’s first wife in 2001. However, the INS rejected the petition, questioning the legitimacy of Riero's marriage. The Immigration Judge (IJ) reviewed additional evidence but agreed with the INS that the marriage was not bona fide, leading to Riero and Espinol's removal. The Board of Immigration Appeals (BIA) acknowledged the significance of the petition's denial but asserted it did not conclusively determine its merit. The BIA upheld the IJ's decision that Riero did not prove the bona fides of his marriage.
In Matter of Butt, Butt's employer submitted a labor certification application in 2001, which was never approved due to a lack of response to information requests. Although a new labor certification was approved in 2005, Butt’s I-485 petition was denied because the initial application was deemed not approvable at the time it was filed. The IJ ordered Butt's removal, but the BIA reversed this decision, affirming that a labor certification could still be considered meritorious even if not approved. The BIA referenced Ogundipe and Matter of Riero, establishing that the determination of a visa petition's merit can be made based on hypothetical approval had it been adjudicated at the time of filing, regardless of subsequent events leading to denial.
The BIA also noted that new evidence can be considered when evaluating petitions that were previously denied by the INS. The core issue under consideration is whether the reasons for a petition’s denial—whether procedural or substantive—impact the agency's obligation to reassess the petition's merits based on new evidence.
Plaintiff argues for the allowance of additional evidence regarding his previously denied 1998 and 2000 petitions, insisting that USCIS should reconsider these petitions. Defendants counter that USCIS correctly evaluated the new evidence and assert that a previous denial on the merits indicates the petitions were not "meritorious in fact." The Court agrees with Defendants, emphasizing that the regulation permits petitions to be deemed "approvable when filed" only under specific circumstances, such as withdrawal, beneficiary or petitioner death, filing fee issues, or family relationship changes, none of which applied to Mr. Hsiao's case. His petitions were denied due to insufficient evidence for EB-1 or EB-2 visa qualifications, not due to any of the qualifying circumstances outlined in 8 C.F.R. 205.1(a)(3)(ii). The Court highlights the impracticability of requiring USCIS to revisit adjudications from 15 and 17 years prior, referencing the First Circuit's stance on the futility of re-litigation based on new evidence. Furthermore, the Court notes that re-examination would conflict with the six-year statute of limitations on APA claims. Ultimately, the Court finds no legal error in USCIS's reliance on prior decisions and concludes that the agency did not violate the APA in denying Mr. Hsiao’s Form I-485 applications. The Court grants Defendants’ Motion for Summary Judgment and denies Plaintiff's Motion for Summary Judgment, directing the case to be closed. To qualify for adjustment of status, an individual must submit a Form I-485 application, be eligible for an immigrant visa, be admissible to the U.S., and have an immigrant visa available at the time of application.
