Zizi v. Cuccinelli

Background

Martin Atillio Dominiq Zizi, a citizen of Belgium, is a biophysicist with an M.D. and a Ph.D. He founded Aerendir Mobile, Inc., based on patented biophysics technology, and had previously worked for Scanadu Inc. Zizi also conducted research and other activities for the Belgian Ministry of Defense.

Legal framework

An EB-1A visa petition requires evidence that the applicant has extraordinary ability and has received sustained national or international acclaim. Under the governing regulation, an applicant may satisfy the initial evidentiary requirement through a major international award or evidence meeting at least three of ten listed criteria.

Under the two-step framework described in Kazarian v. United States Citizenship and Immigration Services, USCIS must first determine whether the applicant has met the required evidentiary criteria. If so, USCIS must conduct a separate final merits determination weighing the evidence to decide whether the applicant has reached the required level of expertise and acclaim. A court may set aside the agency’s decision if it was arbitrary, capricious, an abuse of discretion, or otherwise unlawful.

The court’s analysis

USCIS initially concluded that Zizi had not met at least three criteria. The Administrative Appeals Office likewise found that he had not satisfied the criteria concerning lesser awards, published material, and original contributions. Because of that conclusion, the agency did not fully address other evidence and did not conduct the required final merits determination.

Original scientific contributions. The court held that Zizi had shown, by a preponderance of the evidence, original scientific contributions of major significance. The court found that the Administrative Appeals Office had improperly discounted the significance of Zizi’s patents, selectively evaluated supporting letters and other evidence, and treated the technology as having only future potential despite evidence of existing demonstrations, licensing negotiations, scientific influence, an FDA-approved product based on Zizi’s patents, and other developments. The court also found that the agency had improperly blurred the initial evidentiary inquiry with the separate final merits inquiry.

Scholarly authorship. The court held that Zizi had shown authorship of scholarly articles in the field in professional or major trade publications or other major media. The record included evidence of dozens of articles, thousands of citations, and his reported citation indexes. The Government did not dispute this category, and the Administrative Appeals Office had not addressed it.

Leading or critical role. The court found that Zizi had established that he played a leading role at Aerendir and Scanadu, but had not established that those companies had the required distinguished reputations. The court also found that he had not shown that his work connected to the Belgian Ministry of Defense amounted to a leading or critical role within that organization.

Published material. The court held that the Administrative Appeals Office acted arbitrarily and capriciously in rejecting articles about technology developed by Zizi on the ground that they focused on the technology or associated companies rather than on Zizi personally. The court reasoned that evidence about his technology could support his claim because he developed it. The court also found that the agency improperly demanded independent website-traffic evidence to show that the publications were professional or major trade publications. The court concluded that Zizi had provided sufficient evidence for this criterion.

High salary. The court did not consider Zizi’s argument concerning the high-salary criterion because he had not raised that argument in his administrative appeal to the Administrative Appeals Office.

Lesser awards. The court found that the agency had improperly rejected venture-capital funding for Aerendir because the funding was awarded to the company rather than directly to Zizi. The court concluded that the evidence showed Zizi’s involvement was a motivating factor for the investment and held that he had shown a qualifying lesser award in the form of venture-capital investment in his company.

Comparable evidence. The court rejected Zizi’s argument concerning comparable evidence, including his invitation to write for the Forbes Technology Council. The court held that Zizi had not shown that the ordinary regulatory criteria did not readily apply to his occupation, which was required before USCIS had to consider comparable evidence.

Disposition

Judge Susan Van Keulen concluded that Zizi satisfied the first step because he provided sufficient evidence of four criteria: original scientific contributions of major significance, authorship of scholarly articles, published material about him, and receipt of lesser awards in his field. Because USCIS had not conducted the second-step final merits determination, the court held that remand was the proper remedy.

The court GRANTED Zizi’s motion for summary judgment and DENIED the Government’s cross-motion for summary judgment. It remanded the matter to USCIS, which must proceed to the second step and conduct a final merits determination. The court did not order USCIS to approve the petition.