United States District Court, S.D. California
For Sunil Repaka, Plaintiff: Kathrin S Mautino, LEAD ATTORNEY, Mautino and Mautino, San Diego, CA.
For Janet Napolitano, Secretary of Department of Homeland Security, Alejandro Mayorkas, Director of United States Citizenship & Immigration Services, Marilyn Wiles, Director of Nebraska Service Center, Defendants: John J.W. Inkeles, LEAD ATTORNEY, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.
BARRY TED MOSKOWITZ, Chief United States District Judge.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The parties have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion is DENIED and Defendants' motion is GRANTED.
A. Legal Framework: Exceptional Ability Visas
The Immigration and Nationality Act (" INA" ), as amended, provides for the issuance of visas to aliens " who are members of the professions holding advanced degrees . . . who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy." 8 U.S.C. § 1153(b)(2)(B)(i). An applicant for such a visa ordinarily must be sponsored by an American employer, though the INA provides the Attorney General  with discretion to waive the job offer requirement if he " deems it to be in the national interest." Id. Authorized agency officials may exercise that discretion within the bounds of the INA, applicable regulations, and governing decisions so long as their professional judgment is informed, reached, and announced consistent with those laws. Recent Past Pres. Network v. Latschar, 701 F.Supp.2d 49, 61 (D.D.C. 2010).
" Exceptional ability" is defined as " a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." 8 C.F.R. 204.5(k)(2). Neither the INA, nor regulations promulgated thereunder, define " national interest." The Board of Immigration Appeals evaluates requests for a national interest waiver as follows: The petitioner must show (1) that he seeks employment in an area of substantial intrinsic merit, (2) that the proposed benefit will be national in scope, and (3) requiring a labor certification would negatively affect the national interest. Matter of New York State Dep't of Trans., 22 I& N Dec. 215, 217-18 (BIA Aug. 7, 1998) (" NYDOT" ) (" Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." ). NYDOT has been designated as " precedent" with respect to national interest waiver applications. See A.R. 568. See also Talwar v. INS, *18 (S.D.N.Y. July 9, 2001). USCIS continues to apply NYDOT, as evidenced by the RFE (A.R. 453) and its decision (A.R. 559). The Court defers to this interpretation of " national interest."
See Chevron USA, Inc. V. Natural Resources Defense Council, 467 U.S. 837, 842-43,
104 S.Ct. 2778, 81 L.Ed.2d 694 (1994); INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (deferring to a Board of Immigration Appeals order). See also Montana Wilderness Ass'n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013). The waiver denial is reviewable under the Administrative Procedures Act (" APA" ) and 28 U.S.C. § 1331. Mikhailik v. Ashcroft, Civ. No. 04-0904, *13-16, 21 2004 WL 2217511, *2 (N.D.Cal. Oct. 1, 2004) (waiver decision is not a matter of unfettered discretion under 5 U.S.C. § 701(a)(2) because the designation of NYDOT as precedent constitutes a settled course of adjudication " entitled to substantial deference" ) (citations omitted). See also Spencer Enters. V. United States, 345 F.3d 683, 688 (9th Cir. 2003) (" Even where statutory language grants an agency unfettered discretion, its decision may nonetheless be ...