Donskoy v. United States Citizenship and Immigration Services

Background

Sergey Donskoy, a Russian citizen proceeding without a lawyer, petitioned USCIS to classify him as an immigrant with “extraordinary ability” in the field of business. He sought an employment-based first-preference immigrant visa, known as an EB-1 visa. USCIS denied his Form I-140 petition on May 17, 2021, concluding that he had not established eligibility. Donskoy sued under the Administrative Procedure Act, which permits courts to set aside certain agency actions that are arbitrary, capricious, an abuse of discretion, or contrary to law.

Donskoy and USCIS filed cross-motions for summary judgment. Donskoy sought judgment concerning USCIS’s denial, while USCIS asked the court to deny Donskoy’s motion and grant judgment in its favor.

Legal framework

The applicable statute and regulations require evidence that an applicant has sustained national or international acclaim, that the applicant’s achievements have been recognized in the field, and that the applicant has reached the very top of the field. USCIS uses a two-step process. First, the applicant must provide evidence meeting specified regulatory categories, or in some circumstances comparable evidence. Second, USCIS considers the entire record to decide whether the evidence demonstrates extraordinary ability.

The court’s review under the Administrative Procedure Act was limited to whether USCIS applied the law correctly, considered relevant factors, and gave a rational explanation supported by the administrative record. The court could not substitute its judgment for the agency’s.

Court’s analysis

USCIS found that Donskoy satisfied three initial evidence categories: receiving lesser nationally or internationally recognized awards, making original contributions of major significance, and authoring scholarly articles. USCIS found that he had not established the separate category concerning membership in associations requiring outstanding achievements, but that did not matter because three categories were sufficient for the first step. Donskoy did not challenge the first-step determination.

At the second step, USCIS concluded that Donskoy had not shown the required high level of expertise, sustained acclaim, and recognition. The court rejected Donskoy’s arguments that USCIS improperly required individual acclaim for his Fulbright award, sustained acclaim for his achievements, positive reaction from the research community to his articles, or counterevidence from USCIS.

Regarding the Fulbright award, the court held that USCIS reasonably focused on whether the award produced individual acclaim. The record showed that many people had received Fulbright grants, and Donskoy had not provided evidence that his receipt of the award had been widely publicized or that he stood out among recipients.

Regarding Donskoy’s Fulbright Association membership, the court agreed that USCIS reasonably found the membership did not demonstrate the required achievement or sustained acclaim because the association appeared to be open to people who supported its mission, rather than limited to members with outstanding achievements.

Regarding Donskoy’s crowdinvesting work, the court noted that his evidence could support the success of the idea but did not show that he received particular acclaim or credit for it. An expert letter described his contribution as original and significant, but the court found that the letter did not establish that the entities using the model recognized Donskoy’s role. The court also noted that a patent attached to the letter was not Donskoy’s and did not reference him.

Regarding Donskoy’s publications, the court found that USCIS reasonably concluded that the publications did not establish individual acclaim or significant achievement. USCIS had noted that there was no evidence that the publications had generated acclaim or recognition, or had been cited by other scholars.

The court concluded that USCIS had considered the evidence in its entirety and had adequately explained why it did not show that Donskoy had reached the very top of his field. The court therefore could not conclude that USCIS’s decision was arbitrary, capricious, an abuse of discretion, or otherwise unlawful.

Disposition

The court DENIED Donskoy’s motion and GRANTED USCIS’s motion. Donskoy’s complaint was dismissed with prejudice.