MAD RIVER GLEN COOPERATIVE v. JADDOU (2024)

OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

In this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 501 et seq., Plaintiffs Mad River Glen Cooperative (“Mad River”) and Afghan citizen Sayed Alishah Farhang challenge the decision of the United States Citizenship and Immigration Services’ (“USCIS”) Vermont Service Center (“VSC”) denying an O-1A nonimmigrant worker visa petition that Mad River filed on behalf of Mr. Farhang seeking to employ him as a skiing professional. (See Doc. 1.) Defendant has answered (Doc. 7) and filed a Certified Administrative Record (Doc. 16). Currently pending are the parties’ cross-motions for summary judgment. (Docs. 17, 19.)

Statutory and Regulatory Framework

Because this case involves a challenge to an agency's application of federal immigration law, it is necessary to review some of the relevant statutory and regulatory provisions. Federal immigration law provides a variety of mechanisms for noncitizen athletes to work in the United States, either as immigrants or as nonimmigrants. See generally Jain v. INS, 612 F.2d 683, 686 (2d Cir. 1979) (discussing immigrant and nonimmigrant visas).¹ The O-1A nonimmigrant visa is available for individuals who have, in pertinent part, “extraordinary ability in ․ athletics which has been demonstrated by sustained national or international acclaim ․ and whose achievements have been recognized in the field through extensive documentation.” 8 U.S.C. § 1101(a)(15)(O)(i).

Federal regulations define “extraordinary ability” in athletics as “a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” 8 C.F.R. § 214.2(o)(3)(ii). The regulations further provide:

An alien of extraordinary ability in the field[ ] of ․ athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) 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;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien's original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien's authorship of scholarly articles in the field, in professional journals, or other major media;

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

Id. § 214.2(o)(3)(iii).

Sub-regulatory guidance states that the officer determining eligibility for O-1 classification “first determines whether the petitioner has submitted evidence meeting the minimum number of criteria or submitted evidence that the beneficiary received a qualifying award.” USCIS Policy Manual, Vol. 2, Part M, Ch. 4, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4 (Dec. 20, 2023) [https://perma.cc/83XB-FYLL]. If the evidentiary requirements are met, the officer then considers “all the evidence in the record in its totality to determine if the beneficiary is a person of extraordinary ability.” Id. This two-step process is consistent with the Ninth Circuit's ruling in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). See Arbor Home, LLC v. Mayorkas, 604 F. Supp. 3d 878, 887 (N.D. Cal. 2022) (finding that Kazarian’s two-step process “provides the proper framework for analyzing petitions for O-1 visas”); see also Bodhankar v. USCIS, No. 19-CV-706, 2020 WL 777211, at *4 (N.D.N.Y. Feb. 18, 2020) (“[T]he law requires that USCIS do a final merits determination based on the totality of the evidence after the alien establishes that he meets at least three of the criteria listed in Section 204.5.” (citing Kazarian)).

Factual Background

The following facts are drawn from the Certified Administrative Record (“CAR”).² Mad River is a ski resort located in Waitsfield, Vermont. In a letter dated April 27, 2022 and addressed to the USCIS VSC, Mad River advised that it was petitioning on behalf of Mr. Farhang for an O-1A nonimmigrant worker visa. (CAR 94.) Mad River asserted that Mr. Farhang is a person of “extraordinary ability” in athletics under 8 U.S.C. § 1101(a)(15)(O)(i) as an Afghan Olympic skier who “has competed in international competitions, won awards for his skiing, served in a critical capacity for distinguished organizations, earned memberships from prestigious associations, and received major international media coverage.” (CAR 97–98.) Mad River supplied a Form I-129 “Petition for a Nonimmigrant Worker,” which the VSC received on May 16, 2022. (CAR 82.)

Mad River also supplied a series of exhibits as supporting documentation. (CAR 100 (table of contents); CAR 101–263.) Exhibit A—labeled “Information about the Petitioner”—included documents in the following categories: “Job contracts and agent agreement,” “Itinerary of events,” and information about Mad River, including financial statements. (CAR 101–143.) The table of contents summarized the remaining exhibits:

• Exhibit B. Published material about Mr. Farhang has appeared in major media & Evidence of impact: Mr. Farhang was the subject of the documentary Where the Light Shines

• Exhibit C. Published material about Mr. Farhang has appeared in major media: Mr. Farhang has been featured in articles by CNN, Al Jazeera, and other major outlets

• Exhibit D. Evidence that Mr. Farhang has served in a critical capacity for organizations with a distinguished reputation

• Exhibit E. Evidence that Mr. Farhang has earned memberships in associations which require outstanding achievements of their members

• Exhibit F. Evidence that Mr. Farhang has received awards for excellence in the field.

(CAR 100.) Exhibit F included a letter dated April 6, 2022 and signed by International Ski Federation (“FIS”) Development Manager Dimitrije Lazarovski stating that Mr. Farhang's “participation in the FIS level competitions and resulting nomination by the Afghanistan National Olympic Committee places him among the top global ski racing athletes and in the absolute skiing elite from Afghanistan.” (CAR 255.)

The VSC responded by letter on June 16, 2022 with a “Request for Evidence” (“RFE”). (CAR 54.) The RFE noted that Mad River did not submit any evidence to support a finding of “[r]eceipt of a major, internationally recognized award, such as the Nobel Prize” under 8 C.F.R. § 214.2(o)(3)(iii)(A). The RFE further stated that Mr. Farhang “does not appear to satisfy at least three of the eight criteria” listed at 8 C.F.R. § 214.2(o)(3)(iii)(B). (CAR 56.) The RFE letter noted that Mad River did not submit any evidence supporting three of the criteria (judging the work of others, original contributions, and scholarly articles) and did not claim that Mr. Farhang meets the remuneration criterion. (CAR 62–64.) The RFE letter stated that Mad River's evidence was insufficient as to the remaining four criteria (awards, memberships in associations, published material, and employment in a critical or essential capacity). (CAR 57–61, 64.) The RFE letter offered an opportunity to submit responsive evidence.

Mad River submitted a reply on or about September 14, 2022 with “additional evidence and ․ further explanation to establish that Mr. Farhang meets” the criteria for awards, membership in associations, and published material, as well as “additional evidence” that Mr. Farhang meets the criterion for employment in a critical or essential capacity. (CAR 336; see also CAR 343 (table of contents); CAR 344–411 (exhibits).) Exhibit A-1 of the September 2022 reply was a letter from Bamyan Ski Club co-founder Christoph Zurcher, who wrote:

Due to Mr. Farhang's wins at the Afghan Ski Challenge, he was selected by the Afghanistan Ski Federation to be a member of the National Ski Team. Like the national team for any country, membership is awarded to the very best skiers from Afghanistan. Mr. Farhang and only one other individual were accomplished enough to receive this invitation from the Afghanistan Ski Federation and go on to compete in the World Championship in Switzerland. Only the very best skiers in the world compete in World Championship races - As such, Mr. Farhang has certainly distinguished himself as one of just a single handful of the very best skiers ever from Afghanistan and among a small group of the most competitive skiers in the world.

(CAR 347.) Exhibit A-2 was a letter from former Harvard College Ski Team head coach Peter H. Carter, who wrote:

Following victories in their own National Championships and results in European competitions and World Championships, [Mr. Farhang and fellow Afghan ski racer Sajjad Husaini] were selected for the Afghan National Team and sponsored to compete at the 2022 Beijing Olympics. Although neither is likely to ever win an Olympic medal, the fact that they qualified to compete at Beijing establishes their bona fides. Due to the dangers of alpine skiing, and the desire to avoid injuries, the Olympic Organizing Committee restricts competitors to racers with top skill levels, even if they are the best skiers in their respective countries. Numerous skiers with insufficient qualifications and FIS points are excluded from the Olympics for safety reasons.

(CAR 349.)

The VSC issued an unfavorable Decision dated November 8, 2022 in which it concluded that Mad River “failed to demonstrate that the beneficiary has sustained national or international acclaim and recognition for achievements in ․ athletics by providing evidence of at least three of the eight evidentiary criteria as specified in 8 CFR 214.2(o)(3)(iii)(B).” (CAR 37.) The Decision further stated that failure to satisfy that “initial evidentiary requirement” made it unnecessary to analyze “the totality of the evidence to determine whether the beneficiary has reached a level of expertise indicating that the beneficiary is one of that small percentage who have risen to the very top of the field of endeavor and whether the beneficiary has sustained acclaim.” (Id.)

On November 30, 2022—after conducting a “secondary review” but before the deadline for appealing the unfavorable Decision—the VSC issued a Reopen Notice on its own motion under 8 C.F.R. § 103.5(a)(5). (CAR 52; see also CAR 414.) The notice stated: “We have reopened your case, or reconsidered the decision previously issued on your case. We will notify you in writing when we make a decision on your case or if we need additional information.” (CAR 52.)

On December 6, 2022, the VSC issued a Notice of Intent to Deny (“NOID”). Unlike the November 2022 Decision, the December NOID found that Mad River had satisfied two of the eight criteria specified in 8 C.F.R. § 214.2(o)(3)(iii)(B): awards and published material. (CAR 418, 421.) But the NOID found that Mad River did not submit any evidence supporting the criteria regarding judging the work of others, original contributions, and scholarly articles, and further found that Mad River did not claim that Mr. Farhang meets the remuneration criterion. (CAR 421–423.) The NOID also found that Mad River's evidence regarding the criterion for memberships in associations was insufficient. (CAR 418.) The NOID therefore concluded that Mr. Farhang has not satisfied at least three of the eight criteria. (CAR 425.)

Unlike the November 2022 Decision, the NOID proceeded to a “totality of the evidence” analysis. (Id.) On that issue, the NOID stated that Mad River had not established that Mr. Farhang “has reached a level of expertise indicating that [he] is one of that small percentage who has risen to the very top of the field of skiing.” (Id.) The NOID granted an opportunity to “submit evidence to overcome the noted reasons for denial.” (CAR 428.)

Mad River submitted a response to the December 2022 NOID that included a cover letter dated February 16, 2023 and a series of exhibits. (CAR 279–323.) The exhibits included a letter from Gul Hussain Baizada, the Secretary General of the Afghanistan Ski Federation. (CAR 304.) Mr. Baizada described Mr. Farhang as “one of the top two most accomplished skiers in the country” and discussed Mr. Farhang's selection to represent Afghanistan in the 2018 Olympics and his participation in the World Cup in Switzerland. (Id.) The VSC received the response on March 10, 2023. (CAR 323.)

The VSC issued an unfavorable Decision dated April 21, 2023. (CAR 2–13.) Unlike the prior Decision and the NOID, the April 2023 Decision concluded that Mr. Farhang meets three of the criteria: awards, memberships in associations, and published material. (CAR 5.) The Decision discussed the remaining criteria, finding that the evidence was insufficient regarding the criterion for employment in a critical or essential capacity, and that Mad River made no claim as to the other four criteria. (CAR 6–8.)

Still, because Mad River satisfied at least three of the criteria, the VSC proceeded to a “totality of the evidence” analysis. (CAR 8.)³ After reviewing the evidence—organized by the criteria for which it was submitted—the VSC concluded as follows:

USCIS acknowledges the beneficiary has been recognized as one of the two most accomplished skiers in Afghanistan, was named Head Coach of the Afghanistan Ski Federation, and was named a member of the national team and selected to represent Afghanistan in the Olympics. Likewise, USCIS has evaluated his past and prospective compensation.

However, when considered together, the evidence of record does not establish the beneficiary's eligibility. The evidence of record does not sufficiently contextualize the beneficiary's performance within the field of skiing overall to demonstrate he is one of the small percentage of skiers to rise to the very top of the field. According to the beneficiary's ranking profile on the FIS website, all of the beneficiary's ranking for competitions places him within the 3,000 plus to 6,000 plus range. The beneficiary's recognized accomplishments on Afghanistan's national level are notable and acknowledged, but the record does not show that the beneficiary has risen to the very top of the larger, international field.

(CAR 12.) The VSC therefore denied Mad River's petition.

Standard of Review

The Administrative Procedure Act (“APA”) requires the reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be ․ arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Where an APA-based challenge to agency action presents “a pure question of law, a district court's procedural decision to award summary judgment is generally appropriate.” Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 229 (2d Cir. 2020); see also Ali v. King, 555 F. Supp. 3d 8, 14 (S.D.N.Y. 2021) (quoting Ass'n of Proprietary Colls. v. Duncan, 107 F. Supp. 3d 332, 344 (S.D.N.Y. 2015)). But the ordinary summary judgment standard under Fed. R. Civ. P. 56 does not apply. See New York v. U.S. Dep't of Health & Human Servs., 414 F. Supp. 3d 475, 516 (S.D.N.Y. 2019); see also L.R. 56(a) (statement of undisputed material facts not required for motions challenging administrative actions under the APA).

In making its determination, the court is required to “review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. Review under the APA is “narrow and deferential” and “limited to examining the administrative record to determine whether the agency decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Kakar v. USCIS, 29 F.4th 129, 132 (2d Cir. 2022) (citations omitted).

An agency action is arbitrary and capricious if 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.

Id. (quoting Alzokari v. Pompeo, 973 F.3d 65, 70 (2d Cir. 2020)).

“[T]raditional administrative law principles” apply to the court's review. Id. The reviewing court “may not itself supply a reasoned basis for the agency's action that the agency itself has not given.” Id. (quoting Brodsky v. U.S. Nuclear Regul. Comm'n, 704 F.3d 113, 119 (2d Cir. 2013)). The agency is not required to “provide written findings about every piece of evidence that it consider[s].” Id. (alteration in original; quoting Dibble v. Fenimore, 545 F.3d 208, 219 (2d Cir. 2008)). “Plaintiffs bear the burden of showing that the agency action was arbitrary or capricious.” Vermonters for a Clean Env't, Inc. v. Madrid, 73 F. Supp. 3d 417, 422 (D. Vt. 2014).

Analysis

Plaintiffs advance three arguments for summary judgment in their favor. First, Plaintiffs contend that the VSC misconstrued the definition of “extraordinary ability” at 8 U.S.C. § 1101(a)(15)(O)(i) by requiring evidence of both national and international acclaim. (Doc. 17-1 at 18.) Second, Plaintiffs assert that the VSC overlooked Mr. Lazarovski's letter and distorted Mr. Carter's testimony. (Id. at 21.) Third, Plaintiffs argue that the VSC improperly discounted the petition because Mad River did not submit evidence satisfying more than three of the eight criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B). (Id. at 22.) Defendant opposes each of those arguments and seeks summary judgment in her favor on the basis that the VSC rationally determined that Mad River had not met its burden to establish Mr. Farhang's eligibility for an O-1A visa. (See Doc. 19.)

I. Plaintiffs’ Motion for Summary Judgment

A. National or International Acclaim

Noting that the phrase “sustained national or international acclaim” in 8 U.S.C. § 1101(a)(15)(O)(i) is written in the disjunctive, Plaintiffs argue that the statute “does not require proof of national and international acclaim” and that it was error for the VSC “to require Mad River to prove Mr. Farhang's extraordinary ability through evidence he received international acclaim.” (Doc. 17-1 at 19.) Defendant maintains that “USCIS did not find that Plaintiff Farhang had to have international acclaim to qualify” but instead properly found “that Plaintiffs did not provide comparative evidence from which USCIS could determine that national acclaim in Afghanistan equated to being a person of ‘extraordinary ability’ in the field overall.” (Doc. 19 at 26.)

The parties do not dispute the applicable principles of statutory interpretation. “[W]here [the] plain language of [a] statute is unambiguous, [the] inquiry ‘begins with the statutory text, and ends there as well.’ ” Alvarez v. Garland, 33 F.4th 626, 640 (2d Cir. 2022) (quoting Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 127, 138 S.Ct. 617, 199 L.Ed.2d 501 (2018)). However, if the statutory language is ambiguous, courts “turn to canons of statutory construction for assistance in interpreting the statute.” Spadaro v. U.S. Customs & Border Prot., 978 F.3d 34, 47 (2d Cir. 2020) (quoting Power Auth. v. M/V Ellen S. Bouchard, 968 F.3d 165, 170 (2d Cir. 2020)). “[T]he language in a statute or regulation is ambiguous if it is ‘reasonably susceptible’ to two or more readings.” Garcia v. Garland, 64 F.4th 62, 72 (2d Cir. 2023) (quoting In re Med Diversified, Inc., 461 F.3d 251, 255 (2d Cir. 2006)).

Here, the phrase “national or international acclaim” unambiguously permits the requisite sustained “acclaim” to be at either the national or international level. See 2 Charles Gordon et al., Immigration Law and Procedure § 25.02[3] (rev. ed. 2024) (“[T]he beneficiary's renown need not cross country boundaries because the statute includes national as well as international acclaim.”). The statute does not define “acclaim,” and the lack of a specific definition arguably “introduces ambiguity.” See id. But the parties do not explicitly argue that the absence of a statutory definition of “acclaim” for purposes of 8 U.S.C. § 1101(a)(15)(O)(i) renders the statute ambiguous with respect to any issue in this case.

In any event, § 1101(a)(15)(O)(i) is not susceptible to any reading under which “acclaim” is the sole measure of “extraordinary ability.” The statute also expressly requires that the beneficiary's “achievements have been recognized in the field through extensive documentation.” 8 U.S.C. § 1101(a)(15)(O)(i). And the regulations implementing the statute define “extraordinary ability” in athletics as “a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” 8 C.F.R. § 214.2(o)(3)(ii).⁴ Plaintiffs do not dispute any of these requirements. (See Doc. 21 at 13.)

While national acclaim is sufficient for 8 U.S.C. § 1101(a)(15)(O)(i)’s “acclaim” requirement, the “recognition” requirement and the definition of “extraordinary ability” at 8 C.F.R. § 214.2(o)(3)(ii) contemplate analysis of the beneficiary's expertise in a field of endeavor that may extend beyond national boundaries. Cf. Hamal v. U.S. Dep't of Homeland Sec., No. 21-5160, 2023 WL 1156801, at *3 (D.C. Cir. Jan. 31, 2023) (per curiam) (rejecting visa petitioner's argument that agency wrongly required him to establish “international acclaim”; reasoning that “neither national nor international acclaim alone suffices” because “extraordinary ability” visa petitioners “must also establish both that the acclaim was ‘sustained’ and that their ‘achievements have been recognized in the field of expertise’ ”).⁵ The court concludes that the VSC properly considered Mr. Farhang's expertise and achievements in the context of “the larger, international field” of competitive ski racing. (CAR 12.)

B. Mr. Lazarovski and Mr. Carter

Plaintiffs also argue that the VSC failed to consider Mr. Lazarovski's letter and distorted the evidence from Mr. Carter. (Doc. 17-1 at 19–21.) The court begins with the evidence from Mr. Lazarovski. As discussed above, FIS Development Manager Dimitrije Lazarovski wrote that Mr. Farhang's “participation in the FIS level competitions and resulting nomination by the Afghanistan National Olympic Committee places him among the top global ski racing athletes and in the absolute skiing elite from Afghanistan.” (CAR 255.) Although the VSC's June 2022 RFE and November 22 Decision discussed Mr. Lazarovski's letter (CAR 29, 57), Mr. Lazarovski's name does not appear in the April 2023 Decision. Plaintiffs assert that the VSC therefore “entirely failed to consider a relevant factor.” (Doc. 17-1 at 20.) Defendant disagrees. (See Doc. 19 at 21.)

As noted above, an agency action is arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.” Alzokari, 973 F.3d at 70. But the relevant aspect of the analysis that Mr. Lazarovski's letter addresses is Mr. Farhang's ranking as “among the top global ski racing athletes.” (CAR 255.) The April 2023 Decision discusses that issue, finding a lack of evidence that Mr. Farhang “has risen to the top of the field overall” and describing FIS ranking points that place Mr. Farhang “within the 3,000 plus to 6,000 plus range.” (CAR 9.) This is not a case where the agency totally failed to consider an important analytical issue.

The fact that the April 2023 Decision does not mention Mr. Lazarovski by name does not prove that the agency failed to consider Mr. Lazarovski's letter. The VSC's June 2022 RFE and November 22 Decision discussed the letter, so the agency was aware of that portion of the record. Moreover, the agency is not required to “provide written findings about every piece of evidence that it consider[s].” Kakar, 29 F.4th at 132 (alteration in original; quoting Dibble v. Fenimore, 545 F.3d 208, 219 (2d Cir. 2008)).

Plaintiffs assert that the VSC abused its discretion by “conduct[ing] its own review of the rankings on www.fis-ski.com without also addressing the testimony of Mr. Lazarovski.” (Doc. 17-1 at 20.) But Plaintiffs do not dispute the accuracy of the FIS points and rankings that the VSC cited. (See CAR 444–464.) Instead, Plaintiffs argue that the VSC needed to discuss Mr. Lazarovski's letter to properly analyze the FIS rankings.

In some cases, expert analysis is necessary to assist USCIS in determining issues relevant to the “extraordinary ability” analysis. See Chursov v. Miller, No. 18-cv-2886, 2019 WL 2085199, at *4–5 (S.D.N.Y. May 13, 2019) (expert letters described how scientist's work in the field of RNA structural analysis yielded significant results for drug design). But in this case, Mr. Lazarovski's letter does not supply any insight into Mr. Farhang's expertise and achievements that is unaccounted for in other evidence that the VSC cited. The April 2023 Decision acknowledged that Mr. Farhang competed in FIS competitions and achieved ranking points. (CAR 9.) The decision also recognized that Mr. Farhang was selected to the Afghan Olympic team and that this is a “notable accomplishment.” (CAR 10.)

Mr. Lazarovski's statement that these accomplishments place Mr. Farhang “among the top global ski racing athletes” is true. It is also consistent with Mr. Zurcher's statement that Mr. Farhang is “among a small group of the most competitive skiers in the world” (CAR 347) and with Mr. Baizada's observations about Mr. Farhang's participation on the Afghanistan National Ski Team and in the World Cup. But Plaintiffs’ reliance on this point it is akin to saying that athletes performing at the “major league” level automatically meet the “extraordinary ability” standard.

That is not the applicable standard. See Employment-Based Immigrants, 56 Fed. Reg. 60897, 60899 (Nov. 29, 1991) (“A blanket rule for all major league athletes would contravene Congress’ intent to reserve this category to ‘that small percentage of individuals who have risen to the very top of their field of endeavor.’ ”). For athletes from any nation, participation in the Olympics or qualification to participate at that level is a momentous achievement. But it does not automatically qualify the athlete as someone of “extraordinary ability” under 8 U.S.C. § 1101(a)(15)(O)(i). See Noroozi v. Napolitano, 905 F. Supp. 2d 535, 545–46 (S.D.N.Y. 2012) (holding that USCIS did not abuse its discretion in denying an EB-1 “extraordinary ability” visa to the sole member of Iran's 2008 Olympic Table Tennis Team, who ranked 284th the world in table tennis (17th percentile of ranked players) and finished in 65th place at the 2008 Olympics).

Plaintiffs also argue that the VSC distorted the evidence from Mr. Carter. The April 2023 Decision quoted only the portion of Mr. Carter's letter that stated:

Due to the dangers of alpine skiing, and the desire to avoid injuries, the Olympic Organizing Committee restricts competitors to racers with top skill levels, even if they are the best skiers in their respective countries. Numerous skiers with insufficient qualifications and FIS points are excluded from the Olympics for safety reasons.

(CAR 10.) Plaintiffs contend that the VSC “selectively parsed” Mr. Carter's letter “to mistakenly infer Mr. Farhang was kept off the Olympics for safety reasons.” (Doc. 17-1 at 21.)

Defendant's opposition memorandum does not mention Mr. Carter. Plaintiffs argue in their reply that Defendant has therefore conceded this point. (Doc. 21 at 6.) “Generally, an argument not addressed in an opposition to a summary judgment motion is considered waived.” Conklin v. U.S. Immigr. & Customs Enf't, 661 F. Supp. 3d 239, 264 (S.D.N.Y. 2023). In this case, however, the court's review does not require factfinding, and the issue is fully briefed because Defendant addresses it in her reply (Doc. 22 at 6–7). The court therefore elects to exercise its discretion to rule on the issue. See Dean v. Blumenthal, 577 F.3d 60, 67 n.6 (2d Cir. 2009) (per curiam) (“[W]e have discretion to consider waived arguments.”).

The VSC's April 2023 Decision cites Mr. Carter's statements to support the proposition that “not all countries field Olympic teams of similar caliber.” (CAR 10.) Plaintiffs do not cite any contrary evidence on that point. Mr. Carter cited the exclusion of some skiers from the Olympics for safety reasons to support a different point: that Mr. Farhang was not so excluded and thus—although not likely to win an Olympic medal—Mr. Farhang's qualification to compete “establishes [his] bona fides.” (CAR 349.) The court finds nothing in the VSC's April 2023 Decision suggesting that Mr. Farhang is not a bona fide Olympic athlete. To the contrary, the VSC expressly recognized that Mr. Farhang was invited to the 2018 and 2022 Olympics. (CAR 11.) The court finds no error in the April 2023 Decision's discussion of Mr. Carter's statements. This is not a case where the agency decisions “rests upon a factual premise that is unsupported by substantial evidence.” Ctr. for Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992).

C. Failure to Prove More Than Three Criteria

On the totality-of-the-evidence prong of the analysis, the VSC restated its conclusion that Mr. Farhang satisfied the first three of the eight criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B). (CAR 9.) But the VSC wrote that “meeting three of the eight criteria is not sufficient to establish the beneficiary qualifies for the O-1A classification, as the evidence in the record at this time is insufficient to meet the totality section.” (Id.) The VSC discussed that evidence “as grouped by the criteria for which it was submitted.” (Id.) The discussion included analysis of evidence relevant to the three criteria that Mr. Farhang satisfied. (CAR 9–11.) The discussion also included analysis of evidence relevant to two criteria that the VSC concluded Mr. Farhang did not satisfy at the “quantitative” step: employment in a critical or essential capacity and remuneration. (CAR 11–12.) On the latter point, the VSC reasoned that Mad River's offer to pay Mr. Farhang $18 per hour “is not indicative of an individual who is one of the small percentage who have risen to the very top of the field of endeavor.” (CAR 12.)

Plaintiffs argue that the VSC improperly used “satisfaction of three regulatory criteria, but not more, as a negative factor thereby imposing a novel requirement that is not found in the law or regulations.” (Doc. 17-1 at 23.) Defendant maintains that meeting three criteria does not necessarily establish eligibility. (Doc. 19 at 23.) Plaintiffs do not dispute that point but argue that their claim is more nuanced; they assert that “it was arbitrary and capricious for Defendant to discredit the totality of the evidence because Plaintiffs met three, but not more than three regulatory criteria.” (Doc. 21 at 6.)

In the court's view, nothing in the VSC's April 2023 Decision indicates that the agency imposed the alleged improper requirement in the totality-of-the-evidence analysis. The VSC did state that “meeting three of the eight criteria is not sufficient to establish the beneficiary qualifies for the O-1A classification, as the evidence in the record at this time is insufficient to meet the totality section.” (CAR 9.) But that remark cannot be read as a suggestion that satisfaction of exactly three of the regulatory criteria in the “quantitative” analysis is a “negative factor” in the “totality” analysis. In the context of the VSC's decision, that remark only restated the observation that satisfaction of three or more criteria at the first step of the analysis “does not necessarily establish that the beneficiary is eligible for 0-1 classification.” (CAR 4.) Instead, satisfying three or more criteria at the first step is only a threshold requirement to qualify for consideration at the second step, at which the agency determines whether “the beneficiary has sustained national or international acclaim and is one of the small percentage who have arisen to the very top” of the field. (Id.)

Neither was it error for the VSC to consider evidence relevant to the “remuneration” factor at the totality step. As the VSC observed, Plaintiffs did not claim that criterion, but the April 2023 Decision states that “it is important to consider the beneficiary's remuneration when evaluating the totality of the evidence.” (CAR 11.) Plaintiffs cite no authority indicating that, in the “totality” analysis, USCIS cannot consider evidence relevant to a criterion that the beneficiary did not claim or did not satisfy at the first step of the analysis. To the contrary, the agency properly considers “any potentially relevant evidence” at the totality step of the analysis. USCIS Policy Manual, Vol. 2, Part M, Ch. 4, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4 (Dec. 20, 2023) (emphasis added) [https://perma.cc/83XB-FYLL].

II. Defendant's Cross-Motion for Summary Judgment

For the reasons stated above, the court concludes that Plaintiffs have not established that the VSC's decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Defendant is therefore entitled to summary judgment. See Arbor Home, 604 F. Supp. 3d at 885 (“[I]n the absence of finding that Plaintiffs have shown that the Government's decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,’ 5 U.S.C. § 706(2)(A), the Government is entitled to summary judgment.”).

Conclusion

Plaintiffs’ Motion for Summary Judgment (Doc. 17) is DENIED and Defendant's Cross-Motion for Summary Judgment (Doc. 19) is GRANTED.

FOOTNOTES

1.   See also Rachel Insalaco, Comment, Making the Extraordinary Ordinary: Examining the Impact of Shifting Immigration Policies on Professional Athletics in the United States, 28 Jeffrey S. Moorad Sports L.J. 93, 100–09 (2021); Kevin K. McCormick, Note, Extraordinary Ability and the English Premier League: The Immigration, Adjudication, and Place of Alien Athletes in American and English Society, 39 Val. U. L. Rev. 541, 548–69 (2004).

2.   The CAR is sealed because it contains personally identifying information, financial information, and other sensitive materials. (See Docs. 13, 14.) Those sensitive materials are not material to the analysis that follows.

3.   At the conclusion of the “quantitative analysis,” the April 2023 Decision states: “You have failed to demonstrate that the beneficiary has sustained national or international acclaim and recognition for achievements in ․ athletics by providing evidence of at least three of the eight evidentiary criteria as specified in 8 CFR 214.2(o)(3)(iii)(B).” (CAR 8.) That statement is inconsistent with the next sentence, which states that “you have satisfied at least three of the eight evidentiary criteria at 8 CFR 214.2(o)(3)(iii)(B).” (Id.) This inconsistency is harmless error at most; there is no dispute that the April 2023 Decision found that Mad River successfully proved three of the eight criteria.

4.   The regulatory language mirrors the language of H.R. Rep. No. 101-723 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6739. The language in the House Report appears in a section regarding employment-based immigration, but the report indicates that the definition of “extraordinary ability” for such immigrants is identical to the definition for nonimmigrant workers. Id., 1990 U.S.C.C.A.N. at 6749; see also Arbor Home, 604 F. Supp. 3d at 887 (“[T]he two types of extraordinary ability visas are subject to similar statutory and regulatory regimes.”).

5.   Hamal is an unpublished, nonbinding decision that involved a challenge to denial of an EB-1 immigrant visa, not an O-1 nonimmigrant visa. As noted above, however, the definition of “extraordinary ability” is the same in both contexts, and the court finds Hamal to be persuasive.

Geoffrey W. Crawford, Chief Judge