This appeal was not successful at this stage
The AAO dismissed both the motion to reopen and the motion to reconsider as untimely, filed 77 days after the prior decision rather than within the required 33-day window. The petitioner's explanation—that counsel was not notified—was not accepted because the decision was properly mailed to the petitioner directly.
3 more criteria would trigger a full merits review.
A software development and investment firm filed an O-1 petition for a beneficiary working as an investment and marketing specialist, which was denied by the Director for failing to meet at least three evidentiary criteria. The AAO had previously summarily dismissed the appeal because the petitioner failed to identify any legal errors or submit a brief within 30 days. The petitioner then filed combined motions to reopen and reconsider 77 days after the AAO's decision, well beyond the 33-day deadline. The AAO rejected the excuse that prior counsel was not notified, noting the decision was properly served to the petitioner, who could have forwarded it to counsel. Both motions were dismissed as untimely, and the AAO noted that even on the merits the motion would have failed because it addressed the Director's underlying denial rather than the AAO's summary dismissal.
What failed: The petitioner failed to file the motions within the mandatory 33-day deadline, missing it by 44 days. The explanation that counsel was not notified was rejected because the decision was properly served to the petitioner directly. The evidence submitted on motion addressed the wrong decision—it challenged the Director's denial rather than the AAO's summary dismissal, which was the only decision at issue on motion.
Takeaway: Ensure that a properly executed Form G-28 is on file so that counsel receives all USCIS correspondence directly; the petitioner—not counsel's lack of notice—bears responsibility for timely filing. When filing a motion, always address the specific decision being appealed (here, the AAO's summary dismissal) rather than the underlying lower-level denial.
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 O-1A criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The petitioner failed to file the motions within the mandatory 33-day deadline, missing it by 44 days
- The explanation that counsel was not notified was rejected because the decision was properly served to the petitioner directly
- The evidence submitted on motion addressed the wrong decision—it challenged the Director's denial rather than the AAO's summary dismissal, which was the only decision at issue on motion.
Completed
I-129 filed
Investment and marketing specialist
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2024-08-29
AAO decision — Dismissed
The AAO dismissed both the motion to reopen and the motion to reconsider as untimely, filed 77 days after the prior decision rather than within the required 33-day window. The petitioner's explanation—that counsel was not notified—was not accepted because the decision was properly mailed to the petitioner directly.
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.