Zizi v. Cuccinelli

• Court: District Court, N.D. California
• Decided: July 7, 2021
• Docket: 5:20-cv-07856
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MARTIN ATTILIO DOMINIQ ZIZI, Case No. 20-cv-07856-SVK 7 Plaintiff, REDACTED ORDER ON CROSS- MOTIONS FOR SUMMARY 8 v. JUDGMENT 9 KENNETH T. CUCCINELLI, et al., 10 Defendants. Re: Dkt. Nos. 17, 23 11 Plaintiff Dr. Martin Atillio Dominiq Zizi (“Plaintiff” or “Zizi”) is a citizen of Belgium. 12 This action arises out of the denial of Plaintiff’s application for an EB-1A visa, which is available 13 to aliens of “extraordinary ability.” All parties have consented to the jurisdiction of a magistrate 14 judge. Dkt. 8, 15. Now before the Court are Plaintiff’s motion for summary judgment and the 15 cross-motion for summary judgment filed by Defendant United States Citizenship and 16 Immigration Services (“USCIS”) and the other government Defendants (collectively, the 17 Defendants are referred to as the “Government”). Dkt. 17 (“Plaintiff’s MSJ”), 23 (“Government 18 MSJ”).1 The Court held a hearing on June 1, 2021. For the reasons that follow, the Court GRANTS Plaintiff’s motion for summary judgment and DENIES the Government’s cross-motion 19 for summary judgment. 20 21 I. BACKGROUND Plaintiff, a citizen of Belgium, is a biophysicist who holds an M.D. and a Ph.D. Dkt. 1 22 (Complaint) ¶ 3; Dkt. 24-28 (Certified Administrative Record (“CAR”)) at CAR0254. He is the 23 founder and Chief Executive Officer of Aerendir Mobile, Inc., a company he started in 2015 based 24 on his patented biophysics technology. CAR0119. Plaintiff was previously employed by Scanadu 25 Inc., where his patented inventions formed the basis of the company’s FDA-approved medical 26 27 1 device. CAR0193. Plaintiff has also engaged in research and other activities for the Belgian 2 Ministry of Defense. CAR0202. 3 In 2016, Plaintiff was granted an O-1 visa. See CAR0101. On December 3, 2018, Plaintiff 4 filed a petition for an EB-1A visa. CAR0088. USCIS issued a Request for Evidence on April 8, 5 2019, and Plaintiff responded on July 15, 2019. CAR 0089; CAR0265. USCIS denied Plaintiff’s 6 petition on September 11, 2019. CAR0088. 7 Plaintiff appealed the denial to the USCIS Administrative Appeals Office (“AAO”) on 8 October 11, 2019, and provided additional evidence of his qualifications. CAR0019-0057. The AAO dismissed the appeal on July 21, 2020. CAR0002. 9 Following dismissal of his administrative appeal, Plaintiff filed this lawsuit. Dkt. 1. 10 11 II. LEGAL STANDARD Pursuant to 8 U.S.C. § 1153(b)(1)(A), an alien may apply for a visa on the basis of 12 “extraordinary ability” if the alien “seeks to enter the United States to continue work in the area of 13 extraordinary ability” and “the alien’s entry into the United States will substantially benefit 14 prospectively the United States.” To obtain such a visa, which is referred to as a “EB-1A visa,” an 15 alien must show that he has “extraordinary ability in the sciences, arts, education, business or 16 athletics.” Id.; see also 8 C.F.R. § 204.5(h)(1). “Extraordinary ability means a level of expertise 17 indicating that the individual is one of that small percentage who have risen to the very top of the 18 field of endeavor.” 8 C.F.R. § 204.5(h)(2). A petition for an alien of extraordinary ability “must 19 be accompanied by evidence that the alien has sustained national or international acclaim and that 20 his or her achievements have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3). 21 An alien may meet this evidentiary burden in one of two ways: (1) by evidence of “a one-time 22 achievement (that is, a major, international recognized award)”; or (2) evidence of at least three of 23 10 achievements listed in section 204.5(h)(3). Id. Those ten categories are: 24 25 (i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; 26 (ii) Documentation of the alien’s membership in associations in the field for 27 which classification is sought, which require outstanding achievements of their disciplines or fields; 1

2 (iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field 3 for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; 4 (iv) Evidence of the alien’s participation, either individually or on a panel, as a 5 judge of the work of others in the same or an allied field of specification for 6 which classification is sought;

7 (v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; 8 (vi) Evidence of the alien’s authorship of scholarly articles in the field, in 9 professional or major trade publications or other major media; 10 (vii) Evidence of the display of the alien’s work in the field at artistic exhibitions 11 or showcases;

12 (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; 13

14 (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or 15 (x) Evidence of commercial successes in the performing arts, as shown by box 16 office receipts or record, cassette, compact disk, or video sales. 17 “If the above standards to not readily apply to the [petitioner’s] occupation, the petitioner may 18 submit comparable evidence to establish [his] eligibility.” 8 C.F.R. § 204.5(h)(4). 19 USCIS must engage in a two-step process in evaluating an application for a visa for an 20 alien of extraordinary ability. The agency must first determine whether the alien has met his 21 initial evidentiary burden of proving that he has received a major international award or has 22 otherwise met three or more of the criteria set forth in section 204.5(h)(3). USCIS must then 23 decide, in a “final merits determination” and weighing the documentation offered, whether the 24 evidence demonstrates extraordinary ability. See Kazarian v. United States Customs and 25 Immigration Servs., 596 F.3d 1116, 1119-20, 1121 (9th Cir. 2010). 26 A district court may set aside USCIS’s final action on an application for an alien of 27 extraordinary ability only if “arbitrary, capricious, an abuse of discretion, or otherwise not in 1 If agency error is found, the Court may evaluate whether the error was harmless. Kazarian, 596 2 F.3d at 1118-19. The concept of harmless error is constrained in the context of agency review and 3 may be employed “only when a mistake of the administrative body clearly had no bearing on the 4 procedure used or the substance of decision reached.” Id. at 1119 (emphasis in original) 5 (quotation marks and citation omitted). 6 III. DISCUSSION 7 Plaintiff concedes that he has not won an international award of the type contemplated by 8 8 C.F.R. § 204.5(h)(3). Plaintiff therefore bears the burden establishing by a preponderance of the 9 evidence that he meets three of the 10 criteria of that section. Guida v. Miller, No. 20-cv-01471- 10 LB, 2021 WL 568850, at *8 (N.D. Cal. Feb. 16, 2021). 11 In its initial determination, USCIS concluded that Plaintiff had not established that he had 12 met at least three of the 10 criteria. CAR0062. USCIS specifically analyzed the following 13 criteria: (1) receipt of lesser nationally or internationally recognized prizes or awards; 14 (2)published material about the alien; (3) original scientific or other contributions of major 15 significance in the field; (4) authorship of scholarly articles; (5) leading or critical role; and 16 (6)high salary or other significantly high renumeration. CAR0060-0062. USCIS stated that 17 because Plaintiff had not met “the antecedent evidentiary prongs,” it would not conduct “a final 18 merits determination to decide whether the beneficiary has reached a level of expertise indicating 19 that the beneficiary is one of that small percentage who have risen to the very top of the field of 20 endeavor and whether the beneficiary has sustained acclaim.” Id. 21 In Plaintiff’s administrative appeal, the AAO similarly concluded that Plaintiff did not 22 meet the initial evidentiary of three criteria required under 8 C.F.R. § 204.5(h)(3). CAR0011. 23 Specifically, the AAO found that Plaintiff did not satisfy the criteria related to lesser awards, 24 published material about Plaintiff, and original contributions. Id. The AAO noted that on appeal 25 Plaintiff claimed eligibility for two additional criteria—relating to authorship of scholarly articles 26 and playing a leading or critical role in an organization—but stated that because Plaintiff “cannot 27 fulfill the initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(h)(3), we reserve 1 but nevertheless advised that “we have reviewed the record in the aggregate, concluding that it 2 does not support a finding that the Petitioner has established the acclaim and recognition required 3 for the classification sought.” Id. 4 In this litigation, Plaintiff contends that the AAO’s decision was arbitrary, capricious, and 5 an abuse of discretion. Dkt. 1; Dkt. 17. Plaintiff now contends that he presented evidence on six 6 of the criteria in section 204.5(h)(3), as well as comparable evidence under section 204.5(h)(4). 7 Dkt. 17 at 7. The Court addresses each category upon which Plaintiff relies. 8 A. Original scientific contributions of major significance in the field (8 C.F.R. §204.5(h)(3)(v)) 9 To demonstrate that he has made original scientific contributions of major significance in 10 the field, Plaintiff relies on evidence regarding (1) the issuance of at least 13 patents naming 11 Plaintiff as an inventor and in use in relevant fields, (2) his research in the area of phage therapy; 12 (3)his research into peptide-based drug therapy; and (4) his other research and development 13 activities, including the development of a way to build clinical studies and his research into 14 depleted uranium in Kosovo. Dkt. 17 at 7-8; CAR0143-0147. 15 The AAO opinion discussed each category of evidence cited by Plaintiff but concluded 16 that “considered both individually and collectively, [Plaintiff] has not shown that he has made 17 original contributions of major significance in the field.” CAR0010. Among other arguments, 18 Plaintiff challenges the AAO’s conclusions that Plaintiff had shown only possible future 19 significance of the patented technology, not that the technology had already been of major 20 significance. Dkt. 17 at 14-15. Plaintiff notes that he did not simply provide evidence of issued 21 patents; he provided documentation intended to corroborate the significance of his patented 22 inventions, including evidence of the FDA’s approval of the Scanadu device based on Plaintiff’s 23 patents and articles from major publications discussing the impacts of the FDA-approved device. 24 Id. at 15. Plaintiff also cites evidence that Aerendir entered into a Master Service Agreement with 25 and was in negotiations with the federal government to use Aerendir technology based on 26 other of his patents. Id. 27 Upon review, the Court concludes that the AAO’s findings on Plaintiff’s evidence of 1 original scientific contributions of major significance in the field to be arbitrary and capricious and 2 an abuse of discretion. See Kazarian, 596 F.3d at 1118. As a preliminary matter, in discussing 3 Plaintiff’s patents, the AAO stated that “a patent generally recognizes the originality of an 4 invention or idea but does not necessarily establish a contribution of major significance in the 5 field.” AR0007. This statement overlooks the fact that an invention must be not only novel, but 6 also useful, in order to be eligible for patent protection. See 35 U.S.C. § 101. Although the AAO 7 is undoubtedly correct that not all patents represent a contribution of major significance, the 8 AAO’s incomplete statement regarding the standard for patentability suggests it may have 9 improperly discounted the significance of the patents. 10 In addition, the AAO’s conclusion that Plaintiff had not provided satisfactory evidence that 11 his patented technology had made contributions of major significance appears to have been based 12 in large part on the AAO’s selective parsing of letters and other evidence submitted by Plaintiff. 13 See CAR0006-0008. The AAO devoted several paragraphs of its opinion to quoting Plaintiff’s 14 evidence, emphasizing in italics whenever the evidence spoke in terms of the future prospects for 15 Plaintiff’s patented technologies. Id. However, a conclusion that Plaintiff’s inventions had only 16 prospective potential, not existing significance, is contrary to the evidence. For example, the 17 record contains evidence that Aerendir conducted two live “capability demonstrations” for as 18 well as other demonstrations of the technology, in the summer of 2018. See, e.g., CAR1410, 19 CAR1416. Aerendir was engaged in advanced licensing negotiations with several entities as of 20 July 2019. See, e.g., CAR1406-1416. Although the AAO cited a statement by 21 that Plaintiff’s technology “will impact sectors across a wide spectrum” (CAR0006- 22 0007 (emphasis in original)), Professor also provided examples demonstrating how 23 Plaintiff’s work had already “influenced the scientific community” (CAR0197-0198 (emphasis 24 added)). Professor also explained with respect to Plaintiff’s patented peptide drugs that 25 Plaintiff had “obtained the first positive result in a relevant cancer animal model last year” and 26 “[c]urrently he is in contact with major pharmaceutical companies like Novartis and GSK.” 27 CAR0198. Professor also cited Plaintiff’s phage research, in which “[h]is efforts are 1 in the E.U. and the U.S.” CAR0199 (emphasis added). The record also included evidence that 2 Plaintiff’s work for Scanadu led to FDA approval and a product on the market. CAR0193-0195. 3 The AAO’s apparent conclusion that Plaintiff’s inventions had only prospective significance is 4 belied by other evidence in the record. 5 Even if the AAO was correct that the technology had only prospective potential, the 6 Government cites no legal authority for its proposition that an applicant must “demonstrate how 7 his work already qualified as a contribution of major significance” to satisfy his initial evidentiary 8 burden under Kazarian. See Government MSJ at 17. 9 A related problem with the AAO’s evaluation of the significant contributions criteria is 10 that the AAO appears to have conflated the step 1 (evidentiary) and step 2 (merits) inquiries under 11 Kazarian. Satisfying three of the 10 criteria under 8 C.F.R. § 204.5(h)(3) “is merely an 12 evidentiary threshold for an alien seeking to prove extraordinary ability.” Rijal v. U.S. Citizenship 13 & Immig. Servs., 772 F. Supp. 2d 1339, 1346 (W.D. Wash. 2011), aff’d, 683 F.3d 1030 (9th Cir. 14 2012). “If a petitioner has submitted the requisite evidence, USCIS determines whether the 15 evidence demonstrates both a ‘level of expertise indicating that the individual is one of that small 16 percentage who have risen to the very top of the[ir] filed of endeavor,’ 8 C.F.R. § 204.5(h)(2), and 17 ‘that the alien has sustained national or international acclaim and that his or her achievements have 18 been recognized in the field of expertise,’ 8 C.F.R. § 204.5(h)(3).” Id. (citing Kazarian, 596 F.3d 19 at 1119-20)). The Government (and the applicant) must not mistakenly “assume that satisfying 20 three criteria is the end of the ‘extraordinary ability’ inquiry.” Rijal, 772 F. Supp. 2d at 1346. 21 “The USCIS may not conclude that the evidence does not satisfy and evidentiary criterion by 22 looking beyond that criterion to the final merits determination.” Id. at 1347. To be sure, 23 Plaintiff’s scientific contributions have to be “significant” to satisfy the evidentiary criterion, but 24 the evidence he presented on that point is sufficient. 25 Considering the evidence as a whole, Plaintiff has shown, by a preponderance of the 26 evidence, that he has made original scientific contributions of major significance to the field. 27 B. Authorship of scholarly articles in the field in professional or major trade 1 publications or other major media (8 C.F.R. § 204.5(h)(3)(vi)) 2 Plaintiff presents evidence that he authored scholarly articles in the field in professional or 3 major trade publications or other major media, as contemplated by 8 C.F.R. § 204.5(h)(3)(vi). 4 Specifically, Plaintiff provided with his original Petition a listing from ResearchGate showing that 5 he had authored 68 articles, had been cited over 2200 times, and had 4375 “reads” of his published 6 work. CAR0212. Plaintiff’s “h-index” was 24, and Research Gate assigned him a score that was 7 92.5% higher than other ResearchGate members. CAR0226. In response to the AAO’s request 8 for evidence, Plaintiff provided his Google Scholar listing, showing over 2880 citations and an “h- 9 index” of 27. CAR1019. The AAO did not address the category of authorship of scholarly 10 articles once it concluded that Plaintiff had failed to satisfy three other criteria. CAR0011. 11 Similarly, in this action, the Government does not address this category. 12 The Court concludes that Plaintiff has shown, by a preponderance of the evidence, his 13 authorship of scholarly articles in the field in professional or major trade publications or other 14 major media. The Court notes that government does not argue otherwise. 15 C. Performing a leading or critical role for organizations or establishments that have a distinguished reputation (8 C.F.R. § 204.5(h)(3)(viii)) 16 Plaintiff argues that he played a leading or critical role for Aerendir Mobile, Scanadu, and 17 the Belgian Ministry of Defense, and he presents evidence of the reputations of Aerendir and 18 Scanadu. Plaintiff MSJ at 24-26; CAR0032-0032, 0052, 0148, 0190-0193, 0202, 0237, 1194- 19 1204, 1405-1416, 1420-1421, 1426, 1436, 1448. Having concluded that Plaintiff could not 20 establish his eligibility for three other criteria, the AAO declined to decide whether Plaintiff 21 satisfied the leading or critical role criteria of 8 C.F.R. § 204.5(h)(3)(viii). CAR0011. The Court 22 concludes that although Plaintiff has established that he played a leading role at Aerendir and 23 Scanadu, he has not established that those companies have a distinguished reputation within the 24 meaning of Section 204.5(h)(3)(viii). Moreover, Plaintiff has not established that his work in 25 connection with the Belgian Ministry of Defense rose to the level of a leading or critical role 26 within that organization, as required under this category. 27 D. Published material about the alien in professional or major trade publications 1 or other major media, relating to the alien’s work in the field for which classification is sought (8 C.F.R. § 204.5(h)(3)(iii)) 2 Plaintiff offers evidence of articles in the publications Biometricupdate.com, Techworld, 3 and FindBiometrics, Digital Journal, as well as a podcast episode featuring an interview of 4 Plaintiff and Plaintiff’s Tedx talk regarding phage therapy, arguing that they satisfied the category 5 for published material about him in professional or major trade publications or other major media, 6 relating to his work in the relevant field under 8 C.F.R. § 204.5(h)(3)(iii). CAR0208, CAR0209, 7 CAR126, CAR0283, CAR0041; see also CAR0310, CAR0319, CAR0327. The AAO concluded 8 that this evidence did not satisfy the criteria, for several reasons. Plaintiff challenges two of the 9 reasons the AAO rejected the publications evidence: (1) the AAO’s conclusion that the cited 10 articles were not about Plaintiff; and (2) the AAO’s finding that Plaintiff had failed to provide 11 independent evidence of the circulation of the cited publications. Plaintiff’s MSJ at 21-22. 12 The AAO’s rejection of the articles upon which Plaintiff relied on the grounds that the 13 articles do not reflect published material about Plaintiff but were instead about technology he 14 developed and/or companies with which he is associated was arbitrary and capricious. CAR0005. 15 To the extent the articles focused more on the technology than on Plaintiff’s biography, that does 16 not detract from, and in fact enhances, their evidentiary value on the issue of Plaintiff’s claim to 17 “extraordinary ability” because the technology discussed in the articles was developed by Plaintiff 18 himself. See, e.g., CAR0208-0209; CAR0319-0328. Thus, the fact that the technology warrants 19 more extensive discussion reflects Plaintiff’s own abilities. The cases the Government cites on 20 this point are distinguishable. See Government MSJ at 15. In Strategati, LLC v. Sessions, the 21 applicant claimed extraordinary ability in the field of small business strategy. No. 18-cv-1200, 22 2019 WL 2330181, at *2 (S.D. Cal. May 31, 2019). USCIS rejected an article submitted as 23 evidence on the criteria of published material about the applicant because the article was about 24 “the rise of entrepreneurial women and not the petitioner specifically.” Id. at *6. Similarly, in 25 Noroozi v. Napolitano, USCIS rejected articles that were “about the Iranian Table Tennis Team 26 and briefly mention” the applicant. 905 F. Supp. 2d at 545. By contrast to these cases, to the 27 extent the articles submitted by Plaintiff do not concern him personally, they are about technology 1 he developed. 2 The AAO also acted arbitrarily, capriciously, and contrary to law when it found that 3 Plaintiff had failed to establish that any of the websites represent professional or major trade 4 publications or other major media. CAR0006. The AAO faulted Plaintiff for failing to offer 5 “independent evidence, such as website traffic figures from third parties, demonstrating the 6 websites’ standing as major media.” Id. The Government argues that the AAO was correct 7 because “[t]he requirement to demonstrate that a publication qualifies as major media is a long- 8 standing one that has been acknowledged by several courts.” Government MSJ at 16 (citation 9 omitted). However, this argument ignores the fact that an applicant is not required to provide 10 evidence of publications about him in “major media”; he may also satisfy the category for 11 published material by providing evidence of published material about him in “professional or 12 major trade publications.” 8 C.F.R. § 204.5(h)(3)(iii). Evidence of the type demanded by the 13 AAO–such as independent website traffic figures–would shed little light on whether a publication 14 is a “professional or major trade publication” within the meaning of the regulation. After all, even 15 if a professional journal is read by every member of that profession, the circulation would be small 16 if the profession itself is small. In other words, “one would expect that professional and trade 17 journals would have a smaller circulation than publications read by the general populace, and thus 18 that professional and trade journals would not generally qualify as ‘major media.’” Braga v. 19 Poulos, No. CV 06-5105 SJO (FMOx), 2007 WL 9229758, at *6 (C.D. Cal. July 6, 2007), aff’d, 20 317 Fed. Appx. 680 (9th Cir. 2009). To be sure, neither a self-serving assertion of a publication’s 21 “#1” position in a field nor attorney argument is sufficient to show that a publication qualifies a 22 professional or major trade publication. Id. at 7. However, independent evidence of a 23 publication’s stature as a major trade publication is not required when that stature is self-evident. 24 See Eguchi v. Kelly, No. 3:16-CV-1286-D, 2017 WL 2902667, at *4 (N.D. Tex. July 7, 2017). 25 Plaintiff provided sufficient evidence about these publications’ circulation and readership. 26 CAR0319-0328. 27 Under the circumstances of this case, the Court concludes that Plaintiff has shown, by a 1 major trade publications. 2 E. High salary or other significantly high renumeration for services in relation to others in the field (8 C.F.R. § 204.5(h)(3)(ix)) 3 Plaintiff argues that he presented evidence of his high salary in relation to other 4 Biophysicists and Biomedical Engineers sufficient to satisfy 8 C.F.R. § 204.5(h)(3)(ix). Plaintiff 5 MSJ at 10-11. The Government acknowledges that Plaintiff presented such evidence in his 6 Petition. Government MSJ at 7. In its Initial Determination, USCIS concluded that Plaintiff’s 7 salary evidence “has no probative value” and “do[es] not show what top CEOs earn in the field of 8 biometric technology in the San Francisco area.” CAR0068. However, the AAO did not address 9 this category. According to the Government, Plaintiff waived the “high salary” category because 10 he did not present that argument in his AAO appeal. Dkt. 31 at 11. Plaintiff does not directly 11 address the waiver argument, but he does state that “[t]he AAO had the entire record before them 12 on their de novo review” and that he “appealed the entire Denial.” Plaintiff MSJ at 12. 13 In his appeal brief to the AAO, Plaintiff did not argue that he satisfied the high salary 14 criteria of 8 C.F.R. § 204.5(g)(ix). See CAR0070-0086. He instead argued that he met the criteria 15 for (1) original scientific contributions; (2) scholarly publications; (3) articles about Plaintiff; 16 (4) critical roles in distinguished organizations; and (5) comparable evidence, including evidence 17 of venture capital and angel investment to establish the lesser award criteria. Id. 18 Because Plaintiff did not appeal USCIS’s Initial Determination that he did not satisfy the 19 high salary criteria to the AAO, this Court will not consider that argument. 20 F. Receipt of lesser nationally or internationally recognized prizes or awards for 21 excellence in the field of endeavor (8 C.F.R. § 204.5(h)(3)(i)) 22 Plaintiff claims that the award of venture capital funding to Aerendir, Inc. satisfies the 23 criteria of receipt of lesser nationally or internationally recognized prizes or awards for excellence 24 in the field of endeavor under 8 C.F.R. § 204.5(h)(3)(i). Plaintiff MSJ at 22-24. The AAO 25 disagreed because the venture capital funding went to the company (Aerendir), not Plaintiff 26 personally. CAR0003-0005. Both sides point to USCIS public guidance stating that venture 27 capital funding may satisfy the lesser prizes or awards criteria. See Plaintiff’s MSJ at 22-23 1 The Court concludes that the AAO’s analysis of the evidence of venture capital funding 2 was arbitrary, capricious, and an abuse of discretion. The Government does not dispute that 3 venture capital funding can satisfy the lesser prizes or awards criteria. See Government MSJ at 13. 4 Neither the AAO (in the administrative appeal) nor the Government (in this action) cite legal 5 support for their insistence that the venture capital funding must be awarded to the individual 6 applicant to qualify. Instead, the argument appears to be based solely on the use of the word 7 “you” in the statement regarding venture capital funding on the USCIS website. See CAR0004; 8 Government MSJ at 13. Yet this interpretation would severely curtail, if not eliminate, the ability 9 of applicants to rely on venture funding to satisfy the section (h)(3)(i) criteria. Venture funding is 10 normally given to companies, not individuals. Thus it is to be expected that the venture capital 11 investment in this case went to Plaintiff’s company, Aerendir, rather than Plaintiff personally. In 12 addition, Plaintiff does not rely on the mere fact of the investment; he has also presented evidence 13 that his involvement in the company was the motivating factor for the investment made by 14 See CAR0237-0238. On this criteria, the AAO erred by drawing an improper and 15 unsustainable distinction between Plaintiff and Aerendir. 16 Considering the evidence as a whole, Zizi has shown, by a preponderance of the evidence, 17 that he received a lesser nationally or internationally recognized prize or award for excellence in 18 his field of endeavor, in the form of a venture capital investment in his company, 19 Aerendir. 20 G. Comparable evidence (8 C.F.R. § 204.5(h)(4)) 21 Plaintiff argues that in addition to the evidence discussed above concerning certain 22 categories under 8 C.F.R. § 204.5(h)(3), he presented “comparable evidence” under § 204.5(h)(4) 23 that USCIS failed to evaluate. Plaintiff MSJ at 26. Specifically, Plaintiff refers to evidence that 24 he is an invited writer for the Forbes Technology Council. Id. (citing CAR0243). 25 Section 204.5(h) provides that a petitioner may submit comparable evidence to establish 26 his eligibility if the standards in section 204.5(g) “do not readily apply to the [petitioner’s] 27 occupation.” The parties disagree about who bears the burden of proving that the section 204.5(g) 1 considering his comparable evidence. Plaintiff MSJ at 26. The Government argues that “Plaintiff 2 must explain why he cannot submit evidence that would satisfy at least three of the criteria set 3 forth in Section 204.5(h)(3), as well as why the evidence he has included is comparable to that 4 required under Section 204.5(h)(3)).” Dkt. 23 at 14. 5 Under the plain language of 8 U.S.C. § 204.5(h), it is Plaintiff’s burden to demonstrate that 6 the standards in section 204.5(g) did not readily apply to his occupation before USCIS is required 7 to consider comparable evidence. He has not done so. Indeed, as discussed above, the Plaintiff 8 was able to present evidence on a number of the section 204.5(g) categories. Accordingly, the 9 Court finds no error in USCIS’s conclusions regarding of Plaintiff’s comparable evidence. 10 IV. CONCLUSION AND DISPOSITION 11 As discussed above, the Court concludes that Plaintiff satisfied step one of the Kazarian 12 framework because he submitted sufficient evidence of at least three of the 10 criteria under 8 13 C.F.R. § 204.5(h). Specifically, Plaintiff provided sufficient evidence of the following criteria: 14 (1) original scientific contributions of major significance; (2) authorship of scholarly articles; 15 (3) published material about the alien; and (4) receipt of lesser awards in the field of endeavor. 16 Plaintiff argues that if the Court finds error in the AAO’s decision, the Court should “set 17 aside the denial, find that he is eligible for the classification, and order Defendants to approve the 18 petition so that he may move on to the adjustment of status phase to seek his green card.” Plaintiff 19 MSJ at 28. Alternatively, the Plaintiff argues that if the Court determines that remand is 20 appropriate, it should retain jurisdiction. Id. The Government argues that if the Court concludes 21 that the agency erred, “the only proper remedy will be to remand the issue to the agency for 22 consideration of the I-140 petition in a Kazarian step two final merits determination.” 23 Government MSJ at 21. 24 Because USCIS concluded that Zizi had failed to establish the lesser awards, published 25 material about the alien, and original scientific contributions of major significance criteria under 26 8 C.F.R. § 204.5(g), it did not address the other criteria raised by Zizi and did not engage in a final 27 merits determination. See CAR00011. In this situation, the proper course is to remand to the 1 3d 499, 508 (S.D.N.Y. 2020). On remand, USCIS must proceed to step two of Kazarian and 2 || conduct a final merits determination. 3 SO ORDERED. 4 Dated: June 24, 2021 Sram etl SUSAN VAN KEULEN 6 United States Magistrate Judge 7 8 9 10 11 12

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