Impossible Foods Inc. v. Jaddou

Background

Impossible Foods Inc. filed an immigrant-visa petition for its employee, Seshadri Gowrishankar, seeking classification as an “outstanding professor or researcher.” United States Citizenship and Immigration Services denied the petition after finding that the company had not shown by a preponderance of the evidence that Gowrishankar was internationally recognized as outstanding in the academic field.

Impossible Foods then filed this action under the Administrative Procedure Act (APA), challenging both the visa-petition denial and the agency’s “Kazarian policy.” The policy uses two steps: first, the agency determines whether the petitioner submitted the required types of initial evidence; second, it evaluates the evidence as a whole in a final merits determination. Claim one alleged that USCIS had adopted the final-merits requirement as a substantive legislative rule without following the APA’s notice-and-comment process. Claims two and three challenged the denial of the petition on other grounds, including whether the denial was arbitrary, capricious, or contrary to law and whether the agency used the wrong burden of proof. The motion at issue concerned only claim one.

Motion to dismiss

The government moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally valid claim. It argued that the Kazarian policy was an interpretive rule that explained existing law rather than a legislative rule that created rights, imposed obligations, or changed existing law. It also argued that claim one was time-barred.

Impossible Foods argued that the final-merits determination added requirements to the immigration statute and regulations. It relied in part on an earlier district court decision, Buletini v. INS, as representing the prior approach that the Kazarian policy allegedly changed. Impossible Foods also argued that the government had not adequately addressed the Ninth Circuit’s test for determining whether an agency rule effectively amends an earlier legislative rule.

Court’s analysis

The court explained that a rule must be adopted through notice and comment if it has the force of law. Under the Ninth Circuit’s test, a rule may have that force when, among other circumstances, it effectively amends an earlier legislative rule. A rule effectively amends an earlier legislative rule only if it is inconsistent with another rule that already has the force of law.

The court held that Impossible Foods did not clearly identify the prior legislative rule that the Kazarian policy supposedly amended. To the extent the company relied on Buletini, the court found that Buletini was a district court decision, not a legislative rule. The court also noted that Impossible Foods did not claim, and cited no evidence, that USCIS had formally adopted a uniform policy embracing Buletini. The court therefore concluded that Impossible Foods had not shown that a prior legislative rule existed or that the Kazarian policy was a legislative rule subject to notice and comment.

Disposition

The court granted the government’s motion to dismiss claim one. It dismissed claim one with prejudice. The opinion does not state a disposition for claims two and three.