United States District Court, D. Columbia.
For Mott Thoroughbred Stables, Inc., Plaintiff: Thomas K. Ragland, BENACH RAGLAND LLP, Washington, DC USA.
For Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, Ron Rosenberg, Chief, U.S. Citizenship and Immigration Services, Administrative Appeals Office, Carrie Selby, Acting Director, U.S. Citizenship and Immigration Services, Vermont Service Center, Defendants: Carl Ezekiel Ross, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.
REGGIE B. WALTON, United States District Judge.
The plaintiff, Mott Thoroughbred Stables, Inc., filed this civil action against the defendants, Leon Rodriguez, the Director of the U.S. Citizenship and Immigration Services (" USCIS" ); Jeh Charles Johnson, the Secretary of the U.S. Department of Homeland Security; Ron Rosenberg, the Chief of the Administrative Appeals Office for the USCIS; and Carrie Selby, the Acting Director of the USCIS Vermont Service Center (" USCIS Service Center" ),
seeking declaratory and injunctive relief to redress the denial of the plaintiff's petition for nonimmigrant status for an alien beneficiary (" beneficiary" ) pursuant to the Immigration and Nationality Act (the " Act" ), 8 U.S.C. § 1101 (2012). Complaint for Declaratory and Injunctive Relief (" Compl." ) ¶ ¶ 1-2, 11-12, 26. Without the agency's approval of the plaintiff's petition, the plaintiff is unable to employ the beneficiary as an Assistant Horse Trainer in its thoroughbred racehorse training facilities. See id. ¶ 1. Currently before the Court is the Plaintiff's Motion for Preliminary Injunction (" Mot." ). After careful consideration of the parties' submissions, as well as the parties' oral arguments presented during the March 25, 2015 hearing on the plaintiff's motion, the Court concludes that it must deny the plaintiff's motion.
A. Statutory Background
The Act authorizes an employer to file a petition (" O-1 Petition" ) requesting that the United States confer temporary, nonimmigrant status upon a beneficiary, who " has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions a demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to continue work in the area of extraordinary ability." 8 U.S.C. § 1101(a)(15)(O)(i); see also 8 C.F.R. § 214.2(o)(1)(i) (2012) (" Under section 101(a)(15)(O) of the Act, a qualified alien may be authorized to come to the United States to perform services relating to an event or events if petitioned for by an employer. Under this nonimmigrant category, the alien may be classified under section 101(a)(15)(O)(i) of the Act as an alien who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry." ); id. § 214.2(o)(2)(i) (" [A] petitioner seeking to classify an alien as . . . [a section 1101(a)(15)(O)(i) or section 1101(a)(15)(O)(ii)] nonimmigrant shall file a petition on Form I-129, Petition for a Nonimmigrant Worker." ). Specifically, the field of the
[a]rts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. [Beneficiaries] engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers, choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.
Id. § 214.2(o)(3)(ii). And with respect to the arts, " extraordinary ability" is synonymous with " distinction." 8 U.S.C. § 1101(a)(46). " Distinction means a high level of achievement in the field of arts evidenced by a degree of skill and recognition
substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts." 8 C.F.R. § 214.2(o)(3)(ii).
To demonstrate that the beneficiary has an extraordinary ability in the arts, the petitioner must provide evidence that the beneficiary is " recognized as being prominent in his or her field of endeavor." Id. § 214.2(o)(3)(iv); see also id. § § 214.2(o)(2)(ii)-(iii). The petitioner may present " [e]vidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field . . . ." Id. § 214.2(o)(3)(iv)(A). The petitioner may also attach " [a]t least three of the following forms of documentation" to the petition:
(1) Evidence that the [beneficiary] has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;
(2) Evidence that the [beneficiary] has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
(3) Evidence that the [beneficiary] has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;
(4) Evidence that the [beneficiary] has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;
(5) Evidence that the [beneficiary] has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the [beneficiary] is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the [beneficiary]'s achievements; or
(6) Evidence that the [beneficiary] has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence
Id. § 214.2(o)(3)(iv)(B). As a last resort, if the aforementioned forms of documentation " do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's eligibility." Id. § 214.2(o)(3)(iv)(C).
In contrast, the evidentiary standard for obtaining temporary, nonimmigrant status for a beneficiary with extraordinary ability in the " field of science, education, business, or athletics," is different than that for the " arts."
See id. § 214.2(o)(3)(ii). " Extraordinary ability" in these fields " means 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." Id. The petitioner must demonstrate that the beneficiary has " sustained national or international acclaim and recognition for achievements in the field of expertise." Id. § 214.2(o)(3)(iii);
see also id. § § 214.2(o)(2)(ii)-(iii). To do so, the petitioner may present evidence of the beneficiary's " [r]eceipt of a major, internationally
recognized award . . . ." Id. § 214.2(o)(3)(iii)(A). The petitioner may also submit " [a]t least three of the following forms of documentation" with the petition:
(1) Documentation of the [beneficiary's] receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(2) Documentation of the [beneficiary'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 [beneficiary], relating to the [beneficiary'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 [beneficiary'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 ...