Arbor Home, LLC; Farshad Taheri v. Alejandro N. Mayorkas;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARBOR HOME, LLC; FARSHAD
TAHERI,
Plaintiffs-Appellants,
v.
ALEJANDRO N. MAYORKAS; et al.,
Defendants-Appellees.
No. 22-16081
D.C. No. 5:21-cv-03737-BLF
MEMORANDUM0F
*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted July 13, 2023
San Francisco, California
Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.
Arbor Home, LLC and Farshad Taheri appeal from the district court’s order
granting summary judgment in favor of the government in this O-1, “extraordinary
ability,” visa proceeding. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court correctly determined that the United States
Citizenship and Immigration Services (USCIS) did not err in using a two-step test
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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to assess whether Arbor Home’s O-1 visa application for Taheri met the statutory
and regulatory requirements for Taheri to merit an O-1 classification. Contrary to
Arbor Home’s argument, this test is not a new, unlawful rule, but is well-
established in the applicable visa regulations, legislative rules, and case law. See,
e.g., Matter of Chawathe, 25 I. & N. Dec. 369, 376 (AAO 2010); 8 C.F.R.
§ 214.2(o)(3)(iii)(B), (o)(6)(i); Temporary Alien Workers Seeking H-1B, O, and P
Classifications Under the Immigration and Nationality Act, 59 Fed. Reg. 41,818,
41,818–20 (Aug. 15, 1994).
2. The district court correctly determined that USCIS’ denial of the visa
application was not arbitrary and capricious, an abuse of discretion, or otherwise
unlawful. See 5 U.S.C. § 706(2)(A). Once Arbor Home satisfied the initial
evidentiary step, it had to persuade the agency that Taheri has “extraordinary
ability . . . which has been demonstrated by sustained national or international
acclaim” and that his “achievements have been recognized in the field.” See 8
U.S.C. § 1101(a)(15)(O)(i). Pursuant to the totality of the evidence standard, the
agency evaluated all of the documentation submitted and its resulting decision was
not arbitrary and capricious, an abuse of discretion, or otherwise unlawful.
AFFIRMED.

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