Case: 21-20615 Document: 00516374750 Page: 1 Date Filed: 06/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 28, 2022
No. 21-20615
Lyle W. Cayce
Clerk
Yogi Metals Group, Incorporated; Vinod Moorjani,
Plaintiffs—Appellants,
versus
Merrick Garland, U.S. Attorney General; United States
Department of Homeland Security; United States
Citizenship and Immigration Services; Gregory A.
Richardson, Director, USCIS Texas Service Center; United States
of America,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC 4:19-CV-4283
Before Higginbotham, Haynes, and Wilson, Circuit Judges.
Per Curiam:
Yogi Metals Group, Inc. applied for an EB-1C visa for one of its
employees, Vinod Moorjani. The United States Customs and Immigration
Services (USCIS) denied the application. Yogi Metals and Moorjani filed suit
in federal district court, arguing that USCIS acted arbitrarily and capriciously
in denying the application. The district court granted summary judgment to
USCIS. We affirm.
Case: 21-20615 Document: 00516374750 Page: 2 Date Filed: 06/28/2022
No. 21-20615
I.
In 2015, Yogi Metals, a Texas corporation, acquired a 50% interest in
SS Impex, an Indian company. In 2017, Yogi Metals appointed Moorjani, an
SS Impex employee, as the general manager of Yogi Metals’ scrapyard in
Houston, Texas, where he then worked under a L-1A visa, a temporary
nonimmigrant classification enabling the transfer by U.S. employers of an
executive or manager from an affiliated foreign office to a U.S. office. 1
Yogi Metals filed a Form I-140 petition for Moorjani’s EB-1C visa, a
first-preference, employment-based visa. 2 USCIS issued a notice of intent to
deny (NOID), asserting deficiencies in the application. The following month,
Yogi Metals and Moorjani filed a response and included additional materials
to support the application. USCIS issued a second NOID, allowing the
submission of further evidence. Ultimately, USCIS denied the petition.
Yogi Metals and Moorjani filed suit, seeking review under the
Administrative Procedure Act 3 and a declaration that the denial of the visa
application by USCIS was arbitrary and capricious. The parties filed cross-
motions for summary judgment. The district court granted summary
judgment to USCIS, concluding that Yogi Metals and Moorjani failed to
demonstrate that Moorjani would be employed in a managerial capacity. 4
Yogi Metals and Moorjani timely appealed.
1
See 8 C.F.R. § 214.2(l)(1).
2
See 8 U.S.C. § 1153(b)(1)(C); 8 C.F.R. § 204.5(j)(2).
3
5 U.S.C. § 551 et seq.
4
Yogi Metals Grp. Inc. v. Garland, 567 F. Supp. 3d 793, 798–800 (S.D. Tex. 2021).
2
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II.
We review de novo the grant of summary judgment, applying the same
standards as the district court. 5 The denial of a visa application is an agency
action which stands unless it was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with [the] law.” 6 “A decision is
arbitrary or capricious only when it is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.” 7 This
narrow standard of review does not seek the court’s independent judgment;
it asks only whether the agency engaged in reasoned decision making based
on consideration of the relevant factors, 8 with a visa applicant bearing the
burden of establishing eligibility by a preponderance of the evidence. 9
III.
Under 8 U.S.C. § 1153(b)(1)(C), aliens may apply for an employment-
based visa if they render services to a multinational corporation in a
managerial or executive capacity. As defined by 8 U.S.C. § 1101(a)(44)(A),
an employee acts in a managerial capacity if they primarily manage the
organization and supervise the work of other supervisory or professional
employees. This includes having the authority to hire and fire supervised
employees. 10 However, “[a] first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor’s
5
Terrebonne Par. Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
6
5 U.S.C. § 706(2)(A).
7
Wilson v. U.S. Dep’t of Agric., 991 F.2d 1211, 1215 (5th Cir. 1993) (internal
quotations omitted).
8
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020).
9
Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475 (5th Cir. 1989).
10
8 U.S.C. § 1101(a)(44)(A)(iii).
3
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supervisory duties unless the employees supervised are professional.” 11 The
applicable regulations reiterate the importance of supervisory authority for
the determination of an applicant’s managerial capacity and visa eligibility. 12
Yogi Metals provided an organizational chart and Moorjani’s work
duties as part of the application. USCIS acknowledged these materials, but
found them insufficient. The organizational chart shows eleven total
employees with various lines appearing to establish the chain of command at
the company. 13 It contains a line indicating that Moorjani reported to the
CEO. There are employees lower than Moorjani on the organizational chart,
but there are no lines indicating that any employees reported to Moorjani or
that Moorjani acted in a managerial capacity. 14
As to Moorjani’s work duties, detailed in a letter submitted by Yogi
Metal’s CEO, they do not establish that Moorjani was primarily engaged in a
managerial capacity. Of the eight duties listed, only two are clearly
managerial: oversight of certain subordinate personnel and the hiring and
firing of employees. Even in a prior statement by Appellant’s counsel to
USCIS, which details with greater specificity Moorjani’s duties and the
percentage of time spent on each, the managerial tasks are only 35% of
Moorjani’s time. Neither the list of Moorjani’s duties nor the organizational
chart establishes that USCIS acted arbitrarily or capriciously in determining
11
Id. § 1101(a)(44)(A).
12
8 C.F.R. § 204.5(j)(2).
13
USCIS questioned the reliability of the organizational chart as the Form I-140
indicated that Yogi Metals had only nine employees. Regardless of any inconsistency, the
organizational chart does not support the contention that Moorjani was primarily engaged
as a manager.
14
Elsewhere, a list of Moorjani’s duties indicates that he was responsible for hiring
and firing the employees lower on the organizational chart, but it does not establish that he
was responsible for supervising them.
4
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No. 21-20615
that Moorjani was not primarily engaged in a managerial capacity, and thus
ineligible for the EB-1C visa.
The Appellants argue that USCIS acted arbitrarily and capriciously in
denying the EB-1C visa petition having granted Moorjani a temporary L-1A
visa, with its similar requirements. 15 But the Appellants did not present this
argument to the district court and we do not consider arguments first raised
on appeal. 16 Regardless, the deference here due the agency decision has not
been overcome, discretion informed by its announced rule that the previous
grant of a temporary visa does not bind USCIS to later grant a permanent
visa. 17
IV.
We AFFIRM the judgment of the district court, granting summary
judgment to USCIS.
15
Compare 8 C.F.R. § 204.5(j)(2) with 8 C.F.R. § 214(l)(1)(ii).
16
Est. of Duncan v. Comm’r, 890 F.3d 192, 202 (5th Cir. 2018).
17
Nat’l Hand Tool Corp., 889 F.2d at 1476.
5