United States District Court, C.D. California, Southern Division
For Chung Hou Hsiao, Plaintiff: Rebecca A Tseng, LEAD ATTORNEY, Margaret W Wong and Associates Co LPA, Diamond Bar, CA; Margaret W Wong, Scott E Bratton, PRO HAC VICE, Margaret W Wong and Associates Co LPA, Cleveland, OH.
For Mark J Hazuda, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, Lori Scialabba, Acting Director, U.S. Citizenship and Immigration Services, Eric Holder, Jr., Attorney General of the United States, Jeh Johnson, Secretary, Department of Homeland Security, Defendants: Elianis N Perez, Glenn M Girdharry, LEAD ATTORNEYS, U.S. Department of Justice, Civil Division - Immigration Litigation, Washington, DC; OIL-DCS Trial Attorney, LEAD ATTORNEY, Office of Immigration Litigation, District Court Section, Washington, DC.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT  DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 
DAVID O. CARTER, UNITED STATES DISTRICT JUDGE.
Before the Court are Defendants' Motion for Summary Judgment (" Defs.' Mot." ) (Dkt. 24) and Plaintiff's Motion for Summary Judgment (" Pl.'s Mot." ) (Dkt. 25).
Plaintiff Chung Hou Hsiao seeks review under the Administrative Procedure Act (" APA" ) of the United States Citizenship
and Immigration Services's (" USCIS's" ) decision to deny his I-485 applications for adjustment to lawful permanent resident status. The key issue in this case is whether his 1998 and 2000 I-140 petitions for an employment-based visa were " approvable when filed" such that Mr. Hsiao's I-485 applications should have been approved.
A. Relevant Immigration Law and Regulations
1. Adjustment of Status
Certain non-citizens, or " aliens" as the term is used in the Immigration and Nationality Act (" INA" ), are eligible to adjust their status to that of an alien lawfully admitted for permanent residence from within the United States, rather than having to return to be processed through the American consulate in their country of origin. 8 U.S.C. § 1255(a). Certain individuals are categorically in eligible to apply for adjustment of status, including those who are not in a lawful immigration status at the time that they submit their I-485 application and those who have previously worked without employment authorization. See 8 U.S.C. § 1255(c). However, a person can adjust to lawful permanent resident status despite having been unlawfully present or having worked without authorization if he or she is " grandfathered" in under 8 U.S.C. § 1255(i). A person can be " grandfathered" in under 8 U.S.C. § 1255(i) if he or she pays a $1,000 fee and can establish that he or she is the beneficiary of a qualifying immigration petition or labor certification application filed on or before April 30, 2001. See 8 U.S.C. § 1255(i).
USCIS's regulations provide that, for a visa petition to be a qualifying petition for § 1255(i) purposes, the petition must have been " approvable when filed." 8 C.F.R. § 245.10(a)(1)(i). " Approvable when filed," in turn, means that the petition was (1) properly filed, (2) meritorious in fact, and (3) non-frivolous (" frivolous" meaning patently without substance). 8 C.F.R. § 245.10(a)(3). The regulation provides that
[t]his determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.
Id. The regulation further defines " circumstances that have arisen after the time of filing" as circumstances similar to certain examples provided in 8 C.F.R. § § 205.1(a)(3)(i) and (ii). Case law interpreting the " approvable when filed" standard is discussed in more detail infra.
2. Employment-Based Visas
The United States immigration system primarily allocates immigrant visas--that is, visas leading to lawful permanent resident status--based on an individual's family relationship to a U.S. citizen or lawful permanent resident or based on an individual's employment. Employment-based visas are available to several categories of individuals. Relevant to this case are the first preference " aliens of extraordinary ability" (" EB-1" ) and second preference
" aliens who are members of the professions holding advanced degrees or aliens of exceptional ability" (" EB-2" ) categories. See 8 U.S.C. § 1153(b)(1), (2).
Typically, to obtain an employment-based visa, the individual must have a job offer and the individual is dependent on his or her employer to initiate the visa application process. The application process usually involves (1) the individual's employer filing a labor certification application with the U.S. Department of Labor (DOL); (2) the employer filing an I-140 petition with USCIS to determine the individual's eligibility for one of the EB categories; and, finally, (3) the individual filing an I-485 application with USCIS to adjust his or her status to lawful permanent resident. See 8 U.S.C. § § 1182(a)(5), 1154(a)(1)(F), 1255(a); 8 C.F.R. § § 204.5(c), (l)(1), 245.1; 20 C.F.R. § 656.10(c). The purpose of the labor certification process is for the DOL to certify that there are not sufficient U.S. workers able, willing, qualified, and available in the geographic area for the job being offered to the individual. See 8 U.S.C. § 1182(a)(5)(A)(i); 20 C.F.R. § 656.24(b).
Individuals eligible for EB-1 classification do not need a job offer, can bypass the often time-consuming labor certification process, and can self-petition on Form I-140. Kazarian v. U.S. Citizenship & Immigration Servs., 596 F.3d 1115, 1120 (9th Cir. 2010). Individuals eligible for EB-2 classification can do the same if USCIS, in its discretion, determines that waiving the job offer and labor certification requirements would be " in the national interest." 8 U.S.C. § 1153(b)(2)(B)(i); 8 C.F.R. § 204.5(k). Under Matter of New York State Dep't of Transp., 22 I.& N. Dec. 215 (BIA 1998), the person seeking the national interest waiver has the burden to establish that: (1) he seeks employment in an area of substantial intrinsic merit; (2) the proposed benefit will be national in scope; and (3) he will serve the national interest to a substantially greater degree than an available U.S. worker with the same minimum qualifications. Id. at 217-18.
Mr. Hsiao was born in Taiwan and is a citizen of Taiwan. Certified Administrative Record (" CAR" ) at 862, 867. He came to the United States in 1993 on an F-1 student visa to study electrical engineering. He obtained his master's degree in electrical engineering from Farleigh Dickinson University in New Jersey in February 1995. CAR at 927, 998, 1001.
1. I-140 Petitions
a. First I-140 Petition in 1998