1

NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

AJAY SONI, 

Plaintiff,

v. 

UNITED STATES OF AMERICA, et al., 

Defendants. 

 

Civil Action No. 11-2431

OPINION 

ARLEO, UNITED STATES DISTRICT JUDGE

This matter comes before the Court by way of Defendants United States of America; Janet 

Napolitano, Secretary of the Department of Homeland Security; United States Citizenship and 

Immigration Services (“USCIS”); and Angela K. Barrow, Acting Director of Texas Service 

Center’s (collectively, “Defendants”) motion for summary judgment. Dkt. No. 53. Pro se Plaintiff 

Ajay Soni (“Soni” or “Plaintiff”) did not file any opposition to the motion.1 For the reasons set 

forth below, Defendants’ motion is GRANTED. 

I. BACKGROUND

This case seeks review of USCIS’s denial of Plaintiff’s employment-based immigrant visa 

petition under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 706(2)(A). 

                                                            

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 Defendants’ motion for summary judgment was filed on April 8, 2016, more than three months 

ago. On May 24, 2016, Plaintiff’s pro bono counsel, Susheel Verma, Esq. (“Ms. Verma”), moved 

to withdraw due to a breakdown in attorney-client communication. Dkt. No. 57. The motion was 

granted on June 9, 2016. Dkt. No. 59. On June 15, 2016, Ms. Verma advised Plaintiff that the 

motion to withdraw had been granted, and that Plaintiff was no longer represented by an attorney 

in this matter. Dkt. No. 60. She also advised Plaintiff, via overnight express mail to his home 

address and several e-mail exchanges, that the deadline to file opposition to the pending motion 

was June 24, 2016. Id. Plaintiff did not file any subsequent papers with the Court. 

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Plaintiff is a native and citizen of India. Administrative Record (“A.R.”) 46, Dkt. Nos. 42-

43. In May 2006, Soni obtained a Ph.D. in International Business from Atlantic International 

University (“AIU”), an online university that is not accredited by the U.S. Department of 

Education. A.R. 1236, 1279. On August 10, 2006, Soni entered the United States on an H-1B 

non-immigrant visa. A.R. 47. 

On April 15, 2008, Soni filed his first Form I-140, Immigrant Petition for Alien Worker 

(“First Petition”) with USCIS, seeking classification as an alien who has “extraordinary ability in 

the sciences, arts, education, business, or athletics.” A.R. 1389, 1553-55. Additionally, on or 

about the same date, Soni filed his first Form I-485, Application to Adjust Status (“First 

Adjustment Application”), seeking to reside permanently in the United States. A.R. 1985-89. 

USCIS reviewed Soni’s First Petition and, on June 15, 2009, issued a Request For Evidence 

(“RFE”) to Soni for additional information to assess his eligibility for the EB-1 immigrant 

classification. A.R. 1890-91. In the RFE, and in accordance with EB-1 regulations, USCIS 

directed Soni to submit additional evidence demonstrating that he “has sustained national or 

international acclaim and recognition for achievements in the field of expertise” and that he “is 

one of the small percentage of individuals who have risen to the very top of the field of endeavor.” 

A.R. 1890-91. Soni responded to the RFE on July 22, 2009. A.R. 1892-1943. 

On November 27, 2009, USCIS denied Soni’s First Petition for the highly-restrictive EB1 immigrant classification. A.R. 1293-97. USCIS found that Soni failed to establish that he “has 

sustained national or international acclaim and recognition for achievements in the fields of 

science, education, business, or athletics” because his evidence did not demonstrate that he has 

received a major, internationally recognized award, or that he meets at least three of the ten 

evidentiary criteria specified in 8 C.F.R. § 204.5(h)(3). A.R. 1293-97. Soni appealed the denial 

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of his First Petition to the USCIS’s Administrative Appeals Office (“AAO”), which dismissed the 

appeal on December 28, 2010. A.R. 1106-15. 

On January 20, 2011, USCIS issued a decision denying Soni’s First Adjustment 

Application because his visa petition had not been approved. A.R. 1955-56, 1985. On January 

24, 2011, Soni filed a motion to reopen the denial of the First Petition, A.R. 1100-05, and on 

February 7, 2011 he filed a motion to reopen the denial of the First Adjustment Application, A.R. 

1952-54. USCIS denied both motions on March 31, 2011. A.R. 1945-46, 1961-63, 1965. On 

April 27, 2011, Soni filed the instant complaint under the APA, challenging the denials of his First 

Petition and First Adjustment Application as arbitrary, capricious, and an abuse of discretion. 

Compl. ¶¶ 1, 4, 8, Dkt. No. 1. 

On February 6, 2012, the Court granted the parties’ joint motion to place the litigation in 

abeyance pending USCIS’s adjudication of Soni’s motion to reopen. Dkt. No. 13. On May 19, 

2011, Soni filed a second petition (“Second Petition”) and adjustment of status application 

(“Second Adjustment Application”), several appeals to the AAO, and numerous motions to reopen, 

reinstate, or reconsider. See A.R. 46-51, 76-80, 86-90, 92-96, 121-24, 159-68, 293-302, 304-08, 

530-74, 1293-97, 1384-88, 1390-96, 1542-46, 1553-55, 2013-25, 2072-78, 2659-85. After 

reviewing Soni’s additional submissions, USCIS denied his Second Petition and Second 

Adjustment Application on March 16, 2013, and August 5, 2013, respectively. A.R. 42, 159-68, 

2072. On January 20, 2014, Soni filed a motion in this Court to reopen the complaint. Dkt. No. 

14. Four days later he filed a third petition (“Third Petition”) and adjustment of status application 

(“Third Adjustment Application”). A.R. 2072-78, 2689-94. 

On June 24, 2014, the Court granted Soni’s motion to reopen the case. Dkt. No. 15. On 

August 7, 2015, USCIS reopened Soni’s Third Petition and issued a RFE to afford Soni a final 

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opportunity to submit additional evidence in support of his Third Petition. CAR 2659-77. On 

August 26, 2015, Soni submitted evidence in response to the RFE. CAR 2652-58. 

After reviewing Soni’s newly submitted evidence, USCIS again determined that he did not 

qualify for the highly-restrictive EB-1 nonimmigrant classification. A.R. 2625-51. USCIS 

concluded that the evidence failed to establish that Soni has received a major, internationally 

recognized prize or award, A.R. 2628, or has received “sustained national or international 

acclaim,” A.R. 2648-49. In addition, USCIS determined that Soni only satisfied one of the ten 

regulatory criteria set forth in 8 C.F.R. § 204.5(h)(3), instead of the three out of ten that are required 

for qualification as an alien of extraordinary ability. A.R. 2635-37. 

On September 2, 2015, USCIS issued its final decisions, denying Soni’s Third Petition, 

and denying Soni’s Third Adjustment Application on the basis that he was not a beneficiary of an 

approved visa petition. A.R. 2687-89; see 8 U.S.C. 1255(a), 8 C.F.R. § 245.1(a). On April 18, 

2016, Defendants filed the instant motion. Dkt. No. 53. 

II. LEGAL STANDARD 

The APA provides for judicial review of final agency actions. See 5 U.S.C. §§ 702, 704. 

Because a court’s review under the APA is limited to the administrative record on which the 

agency action was based, the usual standard for summary judgment under Fed. R. Civ. P. 56 does 

not apply. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89–90 (D.D.C. 2006). Instead, in 

APA cases, “the function of the district court is to determine whether or not as a matter of law the 

evidence in the administrative record permitted the agency to make the decision it did.” Id. 

(internal citations omitted). In doing so, the Court may hold unlawful and set aside agency action 

only if it finds the action to be “arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with the law.” 5 U.S.C. § 706(2)(A). 

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The scope of review under the arbitrary and capricious standard “is a narrow one.” 

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974). To assess 

whether an agency has acted arbitrarily or capriciously, a court should consider whether the agency 

has relied on factors which Congress has not intended it to consider, entirely failed to consider an 

important aspect of the problem, offered an explanation for its decision that runs counter to the 

evidence before the agency, or is so implausible that it could not be ascribed to a difference in 

view or the product of agency expertise. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court is not empowered to substitute its judgment 

for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) 

abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Instead, the court must 

consider whether the agency’s action was based on a consideration of the relevant factors and 

whether there has been a clear error of judgment. Id. Under this standard, the agency is afforded 

“due substantial deference” that “presume[s] the validity of the agency action.” SBC Inc. v. Fed. 

Commc’n Comm’n, 414 F.3d 486, 496 (3d Cir. 2005) (citations omitted). 

III. ANALYSIS

The Court must decide whether USCIS acted reasonably, in accordance with 8 U.S.C. § 

1153(b)(1), its regulations, and with its own precedent, in denying Soni’s petition seeking an EB1 visa preference as an alien with extraordinary ability who has sustained national or international 

acclaim, and whose achievements have been recognized in the business field through extensive 

documentation . The Court finds that USCIS did not act arbitrarily, capriciously, or unlawfully in 

denying Plaintiff’s Third Petition based on Plaintiff’s failure to prove extraordinary ability. 

 “[E]xtraordinary ability” is defined as “a level of expertise indicating that the individual 

is one of that small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. 

§ 204.5(h)(2). The extraordinary ability designation is thus extremely restrictive. See, e.g, Lee v. 

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Ziglar, 237 F. Supp. 2d 914, 915 (N.D. Ill. 2002) (finding that “arguably one of the most famous 

baseball players in Korean history” did not possess the requisite extraordinary ability as a baseball 

coach). To prove extraordinary ability, an alien must meet one of two threshold burdens. First, the 

alien can provide evidence of “a one-time achievement (that is, a major, internationally recognized 

award).” 8 C.F.R. § 204.5(h)(3). Alternatively, an alien can provide evidence of at least three of 

ten types of lesser achievements enumerated in the regulations. See id. The burden of proof rests 

with the alien to establish by a preponderance of the evidence that he is fully qualified for the 

benefit sought. Because USCIS reasonably concluded that Soni did not submit evidence meeting 

either burden, the Court must affirm the agency’s decision and grant Defendants’ motion for 

summary judgment. 

A. One-Time Achievement 

Upon review of Soni’s petition, USCIS determined that the “evidence does not show that 

the beneficiary has received a major, internationally recognized prize or award.”2 A.R. 2628. 

Plaintiff does not allege he received such a prize or award. See Compl., Cause of Action ¶¶ 1-9. 

Accordingly, USCIS did not abuse its discretion by rejecting Soni’s petition on this basis. 

B. Alternative Criteria 

An alien who cannot demonstrate evidence of a major, internationally recognized award 

may alternatively show that that he meets at least three of the ten regulatory criteria set forth in 8 

C.F.R. § 204.5(h)(3)(i)-(x). USCIS determined that Soni meets criterion number four, but does 

not meet the nine other criteria. See A.R. 2625-51. Soni challenges USCIS’s analysis of the 

evidence under three of the ten regulatory criteria listed in 8 C.F.R. § 204.5(h)(3)(i-x); specifically, 

                                                            

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 “Receipt of the Nobel Prize is the quintessential example of a major award.” Kazarian v. U.S. 

Citizenship & Immigration Servs., 596 F.3d 1115, 1119 (9th Cir. 2010) (citing H.R. Rep. No. 101-

723 (I & II) (1990)). 

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criteria number two, four, and five.3 See Compl., Cause of Action ¶¶ 2-6. Each of Soni’s 

challenges lacks merit. 

1. The Second Criterion: Membership in Associations Which Require Outstanding 

Achievements 

The second criterion is satisfied by “[d]ocumentation of the alien’s membership in 

associations in the field for which classification is sought, which require outstanding achievement 

of their members . . . .” 8 C.F.R. § 204.5(h)(3)(ii). Soni contends that USCIS erred in finding that 

he failed to meet the second criterion because it did not properly weigh his “achievements as a 

PMP and Sigma Six certified professional.” Compl., Cause of Action ¶ 4. As a threshold matter, 

Soni acquired these certifications after the petition filing date, so USCIS could not consider them 

as evidence. See 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg’l 

Comm’r 1971). However, even if Soni’s certifications were timely, USCIS nonetheless provided 

a rational and non-arbitrary explanation for determining that the certifications do not satisfy the 

second criterion. 

USCIS found that the Project Management Institute (“PMI”) does not require outstanding 

achievements for individuals to obtain Project Management Professional (“PMP”) certification. 

See A.R. 2629. A PMP certification from PMI is a professional credential that demonstrates that 

the individual possesses project management knowledge, experience, and skills. Obtaining PMP 

                                                            

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 USCIS concluded that Soni did not submit evidence pertaining to criteria 1, 3, 7, 9, or 10, and 

therefore failed to prove his eligibility for a visa on these bases. See A.R. 2627-49. Soni does not 

object to these findings. See Compl. To the extent Soni challenges USCIS’s determination that 

he does not meet criteria 6 and 8, these arguments are meritless for the same reasons underpinning 

the Court’s analysis of the fifth criterion. Satisfaction of the sixth and eighth criteria turns on the 

scholarly value of Soni’s Ph.D. thesis, see 8 C.F.R. § 204.5(h)(3)(vi), and the reputation of 

organizations he has worked for, see 8 C.F.R. § 204.5(h)(3)(viii), both of which rely on 

substantially the same evidence that Soni submitted to prove eligibility under criterion five, see 

A.R. 2637-49. For the reasons Soni does not meet his burden of proof under the fifth criterion, he 

could not meet his burden under the sixth and eighth criteria. 

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certification merely requires individuals to pay a fee and undergo an application process, possess 

education and experience, and take and pass a multiple-choice examination consisting of 175 

scored questions; recipients are not required to demonstrate outstanding achievement. See A.R. 

2629-30. In its decision, USCIS reasoned that “[m]embership requirements based on employment 

or activity in a given field, minimum education or experience, standardized test scores, grade point 

average, recommendations by colleagues or current members, or payment of dues do not satisfy 

this criterion as such requirements do not constitute outstanding achievements.” See A.R. 2629. 

Soni’s Six Sigma Black Belt certification was deemed inadequate for similar reasons. 

USCIS found that the certification is awarded to students who “pay a fee and complete lessons, 

quizzes, simulated project deliverables and tollgate reviews, and take and pass an examination.” 

A.R. 2631. After examining the certifying institute’s website, USCIS found no indication that Six 

Sigma Black Belt certification required outstanding achievements, nor did it appear that the 

institution “uses recognized national or international experts in their disciplines or fields to judge 

the eligibility . . . .” A.R. 2631. Moreover, USCIS found that Soni “did not submit any information 

from Acuity Institute which explains the criteria for obtaining Six Sigma Black Belt certification 

. . . .” A.R. 2631. 

Because USCIS articulated a rational relationship between the evidence and its 

conclusions, and made no clear error in judgment, the Court finds that it acted within its broad 

statutory discretion. See Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989). 

2. The Fourth Criterion: Participation as a Judge of Others’ Work in the Field 

Next, Soni argues that USCIS erred when “[i]t did not consider review of one article 

sufficient” to meet the fourth criterion. Compl., Cause of Action ¶ 3. This argument is irrelevant 

because USCIS determined that Soni’s evidence did meet the fourth criterion. See A.R. 2635-37. 

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Soni prevailed here. Accordingly, USCIS’s analysis under the fourth criterion does not provide 

grounds for overturning the agency’s decision. 

3. The Fifth Criterion: Original Contributions of Major Significance in the Field 

Finally, Soni contends that USCIS erred in finding him ineligible under the fifth criterion. 

The fifth criterion is satisfied by “[e]vidence of the alien’s original . . . contributions of major 

significance in the field.” 8 C.F.R. 204.5(h)(3)(v). Specifically, Soni argues that USCIS 

“arbitrarily decided that the educational material authored by the plaintiff for an educational 

institution was not published work,” Compl., Cause of Action ¶ 2, arbitrarily “evaluat[ed] the value 

of the plaintiff’s Ph.D. thesis,” id. ¶ 5, and failed to evaluate “significant documentation concerning 

his role in developing a system/procedure utilized by Merck in enhancement of life saving 

procedures,” id. ¶ 6. USCIS, however, thoroughly analyzed Soni’s evidence and adhered to the 

relevant regulatory language in finding that Soni had not proven eligibility under the fifth criterion. 

USCIS found that Soni’s evidence purporting to demonstrate the original contributions of 

his Ph.D. thesis was so vague that it lacked probative value. Soni submitted several letters 

discussing his thesis which failed to “identify any examples of whether the beneficiary made 

original contributions of major significance to the field.” A.R. 2638. USCIS found that the letters 

only contained general assertions regarding Plaintiff’s thesis. See A.R. 2477-92,2638. For 

example, one letter states that the thesis was “unique and valuable to the field.” A.R. 2638. 

Another letter states that the “thesis work was outstanding, original and valuable to the field.” Id. 

A third letter claims the “thesis work . . . is unique and extraordinary where he has defined some 

research methodologies which has been rarely used. He did an extensive research on International 

Trade laws and the cultural aspects used by global companies to see a product globally.” Id. 

Conclusory statements about the value of Soni’s thesis or other contributions to his field 

are “not sufficient for purposes of meeting his burden of proof in these proceedings.” In re Soffici, 

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22 I. & N. Dec. 158, 165 (BIA 1998) (citation omitted). USCIS’s finding that Soni did not submit 

“any specific examples of how [his] thesis is considered an original contribution of major 

significance in the field” is therefore a reasonable basis for finding that the thesis does not satisfy 

the fifth criterion. See A.R. 2638.4

 Based on USCIS’s thoroughly articulated examination of 

Soni’s evidence, the Court cannot say it made a “clear error of judgement” required to overturn its 

decision. Volpe, 401 U.S. 402, 416 (1971). 

 Likewise, the evidence Plaintiff submitted regarding his role developing systems used by 

Merck failed to “provide specific examples of how the beneficiary contributed to the project.” 

A.R. 2641. The evidence only describes Soni’s work for Merck in general terms such as vital, 

efficient, effective, outstanding, unique, extraordinary, critical, and leading. See A.R. 1976, 2386, 

2393, 2657. “None of the evidence includes any information regarding the beneficiary’s 

employment on a project at Merck Laboratories.”5 A.R. 2648. Accordingly, USCIS found that 

the evidence did not provide any adequate examples of how Plaintiff’s work for Merck is 

considered an original contribution of major significance. A.R. 2641. As previously explained, a 

dearth of supporting evidence is an appropriate reason for USCIS to discount Soni’s conclusory 

statements. See, e.g., Visinscaia v. Beers, 4 F. Supp. 3d 126, 134-35 (D.D.C. 2013). Accordingly, 

the USCIS’s decision that Plaintiff failed to meet the fifth criterion on this basis was not arbitrary. 

IV.CONCLUSION

After conducting a comprehensive review of the underlying evidence in the administrative 

record below and of AAO’s reasoning in its final decision, the Court finds USCIS acted reasonably 

                                                            

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 USCIS also found that the “petitioner did not submit any evidence to establish that his thesis was 

published, whether in any journals in the field, professional or major trade publications, or other 

major media.” A.R. 2639; see 8 C.F.R. 204.5(h)(3)(vi). 

5

 Moreover, “none of the evidence indicates the beneficiary performed in a leading or critical role 

for organizations or establishments that have a distinguished reputation.” A.R. 2648; see 8 C.F.R. 

204.5(h)(3)(viii). 

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in accordance with 8 U.S.C. § 1153(b)(1), its regulations, and with its own precedent in denying 

Soni’s petition for EB-1 status. Accordingly, because Soni cannot carry his burden of showing 

USCIS’s decision was arbitrary, capricious, or contrary to law, Defendants’ motion for summary 

judgment is GRANTED. An appropriate order accompanies this opinion. 

Date: August 2, 2016 /s Madeline Cox Arleo__________ 

MADELINE COX ARLEO 

UNITED STATES DISTRICT JUDGE

 

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