UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IK SCHOOL OF GYMNASTICS,

Plaintiff,

v. 

KIRSTJEN NIELSON et al.,

Defendants.

Case No. 1:17-cv-02822 (TNM)

MEMORANDUM OPINION

IK School of Gymnastics (“the School”) requested that the United States Citizenship and 

Immigration Services (“USCIS”) classify Ms. Viktoriia Savelieva as an “alien of extraordinary 

ability,” a status that would allow her to enter the United States to work at the School’s

gymnastics training center in Florida. As evidence of Ms. Savelieva’s ability and renown as a 

gymnast, the School submitted documentation such as photos of awards and trophies, 

certificates, news articles, and letters from coaches. USCIS, though, denied the School’s 

petition, concluding that Ms. Savelieva did not satisfy the statutory requirements for an 

extraordinary ability visa. 

The School now sues USCIS Director L. Francis Cissna and his boss, Secretary of 

Homeland Security Kirstjen M. Nielsen, bringing claims under the Administrative Procedure Act

(“APA”), the Declaratory Judgment Act, and the Immigration and Nationality Act (“INA”). The 

School asserts that the agency’s denial was arbitrary and capricious and an abuse of discretion. 

In response, the Federal Defendants ask this Court: (1) to dismiss the School’s complaint, in part,

for a lack of subject matter jurisdiction; and (2) to grant summary judgment in their favor on the 
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APA count. The School also moved for summary judgment. These opposing motions are now 

ripe.

Given the generous arbitrary-and-capricious standard of review, this Court will not

overturn the agency’s reasoned judgment that the School did not satisfy the statutory 

requirements for this type of visa. So the Defendants’ motion will be granted, and the Plaintiff’s 

motion will be denied.

I. BACKGROUND

The School is a professional gymnastics training center in Miami, Florida. Compl. ¶ 8, 

ECF 1. It sought to employ Ms. Savelieva, a citizen of Ukraine, as “a rhythmic gymnastics 

assistant coach/performer,” so it submitted on her behalf an I-129 non-immigrant visa petition 

for her classification as an alien of extraordinary ability. Id. ¶ 17. In support of its petition, the 

School submitted various forms of documentation. See generally CAR 265-331.

After receiving the School’s petition and materials, USCIS sent the School a “Request for 

Evidence,” seeking specific additional documentation. See CAR 246-54. The School then 

submitted both a written response and additional evidence. See CAR 18-127. USCIS still 

denied the School’s petition because it concluded that the School did not establish “the type of 

sustained national or international recognition of accomplishments necessary[.]” CAR 9. 

Accordingly, it determined that Ms. Savelieva was ineligible for classification as an alien of 

extraordinary ability. Id. Noting that “[t]he burden of proof to establish eligibility for a desired 

preference rests on the petitioner,” USCIS found that the School had fallen short. Id.

The School seeks relief in this Court, alleging that USCIS’s decision was arbitrary and 

capricious and not in accordance with the law. Compl. ¶ 1. In response, USCIS asks this Court 

to dismiss the School’s complaint, in part, for a lack of subject matter jurisdiction and to grant
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summary judgment in its favor on the School’s APA claim. Defs.’ Mem. in Supp. of Mot. to 

Dismiss 1-2, ECF No. 17-1 (“Defs. Mem.”). The School also seeks summary judgment. Pl. 

Mem. 1-2, ECF No. 20-1 (“Pl. Mem.”). The parties’ opposing motions are before the Court.

II. LEGAL STANDARDS

“Federal courts are courts of limited jurisdiction” and thus “possess only that power 

authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 

U.S. 375, 377 (1994). Jurisdiction is thus a prerequisite that must be satisfied before proceeding 

to the merits, and a federal court must dismiss any action over which it determines that it lacks 

jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007). The party 

claiming subject matter jurisdiction has the burden of establishing it. Arpaio v. Obama, 797 F.3d 

11, 19 (D.C. Cir. 2015).

Summary judgment is usually only appropriate if there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 

56. But when a court is reviewing an administrative agency’s decision, the standard set out in 

Federal Civil Procedure Rule 56 does not apply. Richards v. I.N.S., 554 F.2d 1173, 1177 (D.C. 

Cir. 1977). Instead, as both parties acknowledge, courts review an agency’s decision under the 

deferential standard provided in the APA. See Ramaprakash v. Fed. Aviation Admin., 346 F.3d 

1121, 1124 (D.C. Cir. 2003). 

Under the APA, “the reviewing court shall . . . hold unlawful and set aside agency 

action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A). The court asks whether the 

record contains “such relevant evidence as a reasonable mind might accept as adequate to 

support” the agency’s decision. Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
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Courts “will not disturb the decision of an agency that has ‘examined the relevant data 

and articulated a satisfactory explanation for its action including a rational connection between 

the facts found and the choice made.’” MD Pharm. Inc. v. Drug Enf’t Admin., 133 F.3d 8, 16 

(D.C. Cir. 1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 

29, 43 (1983)). Even though a reviewing court may not “supply a reasoned basis for the 

agency’s action that the agency itself has not given[,]” it may “uphold a decision of less than 

ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. 

Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974). 

III. ANALYSIS

A. The Court Will Grant USCIS’s Motion to Dismiss

USCIS first argues that this Court does not have subject matter jurisdiction over the 

School’s claims under the Declaratory Judgment Act and the INA. Defs. Mem. 1. USCIS 

admits that the APA provides for judicial review of an agency’s final action. Id. at 8. 

USCIS is correct. The School appears to concede as much in its summary judgment 

pleadings. Pl. Mem. 5-6. The Declaratory Judgment Act does not itself confer jurisdiction. 

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Likewise, the Section 214 of

the INA does not provide for judicial review. See 8 U.S.C. § 1184. But the APA does provide 

for judicial review of final agency decisions. See 5 U.S.C. § 706. As a result, under 28 U.S.C. 

§ 1331, this Court only has subject matter jurisdiction over the School’s APA claim. Thus, this 

Court will dismiss the School’s Declaratory Judgment Act and INA claims.
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B. The Court Will Grant USCIS’s Motion for Summary Judgment and Deny the School’s 

Motion for Summary Judgment

Section 101(a)(15)(O)(i) of the INA, codified as 8 U.S.C. § 1101(a)(15)(O)(i), creates the 

O-1 visa classification for an alien 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). In denying the School’s petition, USCIS determined that the 

School did not provide statutorily required documentation of: (1) an advisory opinion and (2) 

Ms. Savelieva’s extraordinary ability.

1. Advisory Opinion Requirement

The Attorney General may approve a petition for this type of visa only after 

fulfilling a specific consultation requirement. 8 U.S.C. § 1184(c)(3). To allow for the 

necessary consultation, aliens must “submit with the petition an advisory opinion from a 

peer group (or other person or persons of its choosing, which may include a labor 

organization with expertise in the specific field involved).” Id. § 1184(c)(6)(A)(i).

USCIS concluded that the School’s documentation did not satisfy the advisory opinion 

requirement because the letters submitted did “not appear to be from a U.S. peer group.” 

CAR 5.

The School insists that it did submit appropriate documentation. Pl. Mem. 16. In 

support of this claim, the School points to letters from the president of the Federation of 

Rhythmic Gymnastics of the Odessa Region, an Olympic rhythmic gymnast, a coach for 
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the Ukrainian Gymnastics Federation, and a professor from the Odessa National

Economics University. Pl. Mem. 18; CAR 302-06. It argues that even though the 

regulation requires consultation from a U.S. peer group, see 8 C.F.R. § 214.2(o)(5)(i)(A), 

the statute itself does not, see 8 U.S.C. § 1184(c)(6)(A)(i). 

USCIS claims that three letters are “clearly” not from a U.S. peer group and thus 

do not satisfy the regulation. Defs. Mem. 9. As to Ms. Olena Vitrychenko’s letter, in 

which Ms. Vitrychenko claims that she coached in the United States, USCIS now argues

that the letter does not establish that she has rhythmic gymnastics expertise. Id. USCIS 

suggests that the letter may not even be authentic. Id. But USCIS did not rely on those 

theories when it denied the School’s petition, and this Court will not rely on them now. 

Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 1577, 91 L. 

Ed. 1995 (1947) (“a reviewing court, in dealing with a determination or judgment which 

an administrative agency alone is authorized to make, must judge the propriety of such 

action solely by the grounds invoked by the agency”).

USCIS originally concluded that the School’s documentation did not satisfy the 

advisory opinion requirement simply because the letters submitted did “not appear to be 

from a U.S. peer group.” CAR 5. However, the statute does not say that the advisory 

opinion must be from a U.S. peer group, and USCIS does not explain why its regulatory 

interpretation of the statute—requiring a U.S. peer group—is reasonable. See Defs. 

Reply 2, ECF 22. USCIS claims that its imposition of a domestic peer group through

regulation filled a statutory gap. It is not clear to the Court that there was in fact a gap to 

fill, and USCIS has pointed to no judicial opinions agreeing with its view. But the Court 

need not decide the question because even if the School satisfied this criterion, it would 
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not prevail. As discussed below, USCIS’s determination that the School also failed to 

establish Ms. Savelieva’s extraordinary ability was not arbitrary and capricious. 

2. Evidence of “Extraordinary Ability” 

To prevail, the School must also provide specific evidence of Ms. Savelieva’s 

extraordinary ability. Because the School does not claim that Ms. Savelieva received a major, 

internationally recognized award, see 8 C.F.R. § 214.2(o)(3)(iii)(A), the School must prove that 

it satisfies at least three of the other eight criteria listed in the regulations. See 8 C.F.R. 

§ 214.2(o)(3)(iii)(B). The School asserts that Ms. Savelieva clears the bar on five of those 

criteria, see Compl. ¶ 18: (1) “receipt of nationally or internationally recognized prizes or awards 

for excellence in the field of endeavor;” (2) “membership in associations . . . which require 

outstanding achievements of their members, as judged by recognized national or international 

experts in their disciplines or fields;” (3) “[p]ublished material in professional or major trade 

publications or major media about the alien;” (4) “participation . . . as a judge of the work of 

others in the same or in an allied field of specialization;” and (5) “employed in a critical or 

essential capacity for organizations and establishments that have a distinguished reputation.” See

8 C.F.R. § 214.2(o)(3)(iii)(B).

To support its claim, the School submitted evidence in various forms. USCIS found the 

School’s evidence insufficient on each criterion, and the School now challenges that decision. 

a. Awards or Prizes

The School first objects to USCIS’s conclusion that the School failed to prove that Ms. 

Savelieva received nationally or internationally recognized awards or prizes in her field. Pl. 

Mem. 9-12. In support of its claim at the agency level, the School submitted documentation such 
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as a list of awards, photos of trophies and prizes, and news articles. CAR 23-125. But USCIS

found that the awards did not name Ms. Savelieva and concluded that the documentation did not 

provide sufficient evidence to prove that the awards and prizes were nationally or internationally 

recognized. CAR 7.

The School argues that USCIS’s decision “disregards much of the evidence provided.” 

Pl. Mem. 9. The School insists that it did submit evidence that both named Ms. Savelieva and 

proved that she received international awards. Id. at 9-11. Even if Ms. Savelieva won these 

prizes and awards, as alleged, this Court agrees with the USCIS’s determination that “the 

photographs and brief descriptions do not explain the significance of the awards or provide 

sufficient evidence to establish that they are nationally or internationally recognized awards.” 

CAR 7. 

Given the documentation submitted, it was eminently reasonable for USCIS to conclude 

that the School did not satisfy this criterion. Many awards seem to be from youth athletic 

competitions. For example, Ms. Savelieva won first place in a regional student competition in 

Odessa. See CAR 294. And it is not obvious that these awards, such as first place at “Cup of the 

Black Sea,” are nationally or internationally recognized in the field of rhythmic gymnastics, and 

it is the School’s burden to establish eligibility. See Matter of Brantigan, 11 I. & N. Dec. 493 

(1966) (“In visa petition proceedings, the burden of proof to establish eligibility sought for the 

benefit conferred by the immigration laws rests upon the petitioner.”). Because this Court cannot

conclude that no rational adjudicator would have come to the same conclusion, it will not disturb 

USCIS’s decision. See Visincaia v. Beers, 4 F. Supp. 3d 126, 133 (D.D.C. 2013) (“Unless the 

court can conclude that no rational adjudicator would have come to the same conclusion . . . it 

must not disturb the agency’s decision.”).
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b. Memberships

Similarly, USCIS concluded that the School failed to prove that Ms. Savelieva was a 

member of “associations in the field for which classification is sought, which require outstanding 

achievements of their members, as judged by national or international experts in their disciplines 

or fields.” CAR 7. The School asserts that it met this criterion because it established that Ms.

Savelieva was a member of the Ukrainian National Rhythmic Gymnastics team and received a

“Master of Sports” designation. Pl. Mem. 12.

Based on the documentation submitted, USCIS could not determine whether membership 

on the Ukrainian National Rhythmic Gymnastics team or a “Master of Sports” designation 

required outstanding achievements. CAR 7. USCIS also concluded that the School’s 

submissions did not prove that Ms. Savelieva belongs to an association requiring outstanding 

achievements in coaching.

1

 Id.

As USCIS stated in its decision, the School submitted no evidence to show that Ukrainian 

National Rhythmic Gymnastics membership and a “Master of Sports” designation require 

outstanding achievements, as judged by national or international experts in their fields. In any 

event, it appears that she was only a reserve member of the National Rhythmic Gymnastics team. 

Without more detail about the requirements for membership, it was reasonable for USCIS to 

conclude that the School did not satisfy this criterion. The agency engaged in a rational 

 1

 Throughout its briefing, the School insists that it need only show that Ms. Savelieva will work 

“in the area” of her extraordinary ability. See, e.g., Pl. Mem. 7-8. That is, according to the 

School, it is enough to show that she is a rhythmic gymnast with extraordinary ability, and it 

need not establish that she is a rhythmic gymnastics coach with extraordinary ability. Id. 

Because this dispute is non-dispositive for the reasons discussed above, this Court need not 

address this issue.
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decision-making process and provided a reasoned decision, satisfying the arbitrary-andcapricious standard of review.

c. Published Material in Major Trade Publications or Major Media 

USCIS also rejected the School’s argument that Ms. Savelieva was the subject of major 

trade publications or major media. CAR 7. The School did submit articles about Ms. Savelieva, 

but USCIS found no evidence that these articles were from major trade publications or other 

major forms of media. Id. USCIS also rejected the School’s submissions because the articles 

did not discuss her coaching, only her personal athletics, and the articles did not include the 

source, date, or author as required by regulations. Id.

In response, the School insists that Ms. Savelieva sought extraordinary ability 

classification based on rhythmic gymnastics talent—not coaching—and that its submissions did 

include the date and source of articles. Pl. Mem. 14-15. Even so, USCIS’s conclusion that the 

School failed to prove that the articles submitted were from major publications or major media

sources was reasonable—even if the Court or the School may come to a different conclusion. 

See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. (“[A] court is not to substitute its judgment for 

that of the agency.”) For instance, it is far from obvious that the “Odessa-Sport” is a major 

publication. See CAR 108. Without more information about the sources of the articles

submitted, USCIS reasonably concluded that the School did not satisfy this criterion. The Court 

cannot conclude that the agency’s determination was arbitrary and capricious. 

d. Participation as Competition Judge

The School also claims that it proved that Ms. Savelieva was “a judge of the work of 

others in the same or in an allied field.” Pl. Mem. 16. To this point, the School submitted a 
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letter from the President of the Federation of Rhythmic Gymnastics of the Odessa region. Id. 

The President stated that Ms. Savelieva “began to develop judge specialty of rhythmic 

gymnastics in 2015 year and started to take part in the refereeing of the Championship sports 

schools and the Championships of the Odessa region.” CAR 126. He also claimed that she “was 

judged [sic] the all-Ukrainian competitions of different levels.” Id. USCIS rejected this 

evidence because the letter did not provide specific information about Ms. Savelieva’s role as a 

judge, and there was no corroborating evidence. CAR 8. USCIS said that it could not determine 

whether Ms. Savelieva’s experiences were equivalent to serving as a judge or being on a panel 

under the regulation. Id.

In response, the School claims that the letter clearly states that Ms. Savelieva was a judge 

and that the regulation does not require corroborating evidence. Pl. Mem. 16. In short, the 

School insists that this letter is enough evidence. Given the lenient arbitrary-and-capricious 

standard of review, this Court will not upset the agency’s determination. It seems reasonable 

that the agency would require more evidence of participation as a judge than the one statement: 

“[a]fter seminars, [Ms. Savelieva] was judged [sic] the all-Ukrainian competitions of different 

levels.” CAR 126. USCIS considered the evidence submitted, articulated a reasonable 

explanation, and made a rational determination. This Court will not disturb its judgment.

e. Employed in a Critical or Essential Capacity

Finally, the School insists that it provided evidence that Ms. Savelieva held a critical role 

as an athlete for the Ukrainian National Gymnastics Team, which, the School claims, is an 

organization with a distinguished reputation. Pl. Mem. 3. USCIS determined that the School did 

not submit sufficient evidence to satisfy this criterion. CAR 8. Even though a letter submitted 

described Ms. Savelieva as the “non-replaceable team captain” of the Odessa National 
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Economics University’s team, USCIS concluded this praise described Ms. Savelieva’s skill as a 

gymnast, not as an employee of an organization has a distinguished reputation. Id. 

Once again, the School is unhappy with the conclusions that the agency drew from the 

record. “It is not enough . . . that the court would have come to a different conclusion from the 

agency.” Visincaia, 4 F. Supp. 3d at 133. The question is whether there is a rational connection 

between the facts found and the choice made. Id. For example, it is reasonable to conclude that 

documentation of Ms. Savelieva’s success as a collegiate athlete at the Odessa National 

Economics University does not establish that she was an essential employee of an organization 

with a distinguished reputation. USCIS’s discussion of the evidence submitted, including 

quotations from the record, shows that it engaged in a reasoned decision-making process, 

satisfying the lenient arbitrary-and-capricious standard of review. 

* * *

To satisfy the “extraordinary ability” requirement, the School had to submit sufficient 

documentation for three of eight potential categories. Unfortunately, although the School 

provided documentation for five categories, the USCIS reasonably found that none of the 

categories were fully satisfied. 
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IV. CONCLUSION

For all these reasons, the Defendants’ Motion to Dismiss and for Summary Judgment will 

be granted, and the Plaintiff’s Motion for Summary Judgment will be denied. A separate order 

will issue.

Dated: October 26, 2018 TREVOR N. MCFADDEN, U.S.D.J.