Goal of Establishing Merit-Based Immigration System Undermined by Visa Hurdles

Goal of Establishing Merit-Based Immigration System Undermined by Visa Hurdles

The Trump Administration has indicated it wants to establish a merit-based immigration system focusing on bringing more high-skilled workers to the United States. According to one Administration official, the aim is to attract “individuals who provide a cure for cancer or build that first subdivision on Mars.” Yet, it is becoming harder to obtain visas for high-skilled workers, including individuals of “extraordinary ability” who are applying for green cards in the EB-1A category. These days, even the most “extraordinary” of cases are resulting in Requests for Evidence and denials.

In one example, after an RFE, USCIS denied an EB-1 immigrant visa to a premier big-game hunter and guide, Roy Dirk Ludick. Ludick had been working for MRC Energy Company, a.k.a., Matador Resources Company, on a temporary O visa, which, itself, requires “extraordinary ability.” Matador is an oil and gas exploration company that has access to hunting properties in the United States. According to the company, Ludick’s important role involves providing hunting experiences for its “high valued partners, shareholders and stakeholders,” and it caters to non-hunting guests who also participate in excursions, whether to photograph wildlife, fish, or simply to enjoy an authentic outdoor experience. The properties require year-round habitat management, including conservation efforts. Matador hired Ludick on a full-time basis and sponsored him for a green card.

Matador presented evidence that Ludick met at least seven of the 10 regulatory criteria (only three are required) and that Ludick was at the very top of his field and had received national and international acclaim. An RFE was subsequently issued and Matador responded with proof, including:

  • Evidence of Ludick’s 19 years of experience in the field;
  • Proof that Ludick served as Chairman of the Zimbabwe Professional Hunters & Guides Association (ZPHGA), an internationally recognized organization;
  • Evidence that Ludick had been recognized for “Most Outstanding Contribution to the Association and Industry” more than once;
  • Evidence that Ludick had been featured in publications;
  • Evidence that Ludick was selected as Chief Examiner of ZPHGA;
  • Proof of Ludick’s original contributions to the field – raising evaluation standards for game hunters worldwide; and
  • Proof that Ludick’s offered salary was more than twice that offered to most highly experienced hunting guides.

In denying the case, USCIS refuted the evidence and, according to Matador, “‘unilaterally impose[d] novel substantive or evidentiary requirements beyond those set forth’ in the regulations.”

After the denial, Matador took the case to court. The company filed a complaint under the Administrative Procedures Act (APA) in the U.S. District Court for the Northern District of Texas, MRC Energy Company v. USCIS and Ken Cuccinelli, Acting Director, USCIS. Matador is asking the court “to vacate the denial . . . and remand this matter to [the USCIS] with instructions that, within ten days . . . they approve the Form I-140 petition.” The company contends that USCIS was arbitrary and capricious in its denial and, therefore, violated the APA and the INA.

More companies facing what seem to be arbitrary or erroneous denials of nonimmigrant and immigrant visa petitions are seeking redress and winning (or settling) in the U.S. District Courts. The specific circumstances of the case, the employer’s and the employee’s situations all must be assessed in developing a post-denial plan. Jackson Lewis attorneys are available to litigate and to assist in assessing whether litigation is the best strategy.

We will continue to follow the Matador case and provide updates.

Jackson Lewis P.C. © 2019


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