This appeal was not successful at this stage
The appeal was dismissed because the petitioner failed to demonstrate that the beneficiary met at least three of the ten evidentiary criteria. Specifically, the AAO upheld the denial of the leading or critical role criterion, leaving the beneficiary with only two criteria met.
1 more criterion would trigger a full merits review.
The petitioner company filed an I-140 on behalf of a senior software engineer with expertise in embedded systems and firmware for self-driving vehicle technology. The Nebraska Service Center director denied the petition finding only two of the required three criteria met. On appeal, the AAO focused on whether the beneficiary satisfied the leading or critical role criterion (viii), ultimately agreeing with the director that leading a sub-team and performing critical project work does not establish a leading or critical role for the organization as a whole. The AAO also noted that independent reference letters were weakened by the beneficiary's existing connections to those companies. Because the beneficiary could not clear the three-criteria threshold, no final merits determination was required and the appeal was dismissed.
What worked: The beneficiary successfully demonstrated original contributions of major significance in the field (criterion v) and high remuneration for services (criterion ix), both of which were credited by the director and not challenged on appeal.
What failed: The leading or critical role criterion (viii) failed because the AAO drew a clear distinction between leading a sub-team or being critical to specific projects versus holding a leading or critical role for the organization as a whole. Additionally, purportedly independent reference letters were undermined because the record showed existing professional connections between the beneficiary and those letter writers.
Takeaway: When claiming a leading or critical role, petitioners must document the beneficiary's position in the organization's overall hierarchy and show impact at the organizational level — not just on individual projects. Independent reference letters should come from genuinely arm's-length sources with no documented professional ties to the beneficiary.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1A criteria.
● Evidence that moved the needle
- The beneficiary successfully demonstrated original contributions of major significance in the field (criterion v) and high remuneration for services (criterion ix), both of which were credited by the director and not challenged on appeal.
● Evidence that wasn't enough alone
- The leading or critical role criterion (viii) failed because the AAO drew a clear distinction between leading a sub-team or being critical to specific projects versus holding a leading or critical role for the organization as a whole
- Additionally, purportedly independent reference letters were undermined because the record showed existing professional connections between the beneficiary and those letter writers.
Criterion-by-criterion breakdown
Original contributions of major significance
MetDirector found this criterion met; AAO did not revisit it, implicitly accepting the finding.
Leading or critical role for distinguished organizations
Not metPetitioner argued beneficiary led a team of 38 engineers and was critical to key projects, but AAO found that leading a sub-team or performing critical project work does not equate to a leading or critical role for the organization as a whole.
High salary or other significantly high remuneration
MetDirector found this criterion met; AAO did not revisit it, implicitly accepting the finding.
Completed
I-140 filed
Senior software engineer specializing in embedded systems and firmware for autonomous vehicle technology
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2020-04-23
AAO decision — Dismissed
The appeal was dismissed because the petitioner failed to demonstrate that the beneficiary met at least three of the ten evidentiary criteria. Specifically, the AAO upheld the denial of the leading or critical role criterion, leaving the beneficiary with only two criteria met.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.