This appeal was not successful at this stage
The AAO dismissed the appeal because the Petitioner's motion to reconsider was filed 269 days after the denial decision, well beyond the 30-day regulatory deadline, and no discretionary exception exists for untimely motions to reconsider (as opposed to motions to reopen).
A company operating a gas station and convenience store sought to permanently employ a beneficiary as its president under the EB-1C multinational executive or manager classification. The Director denied the I-140 on multiple grounds in February 2018, but the Petitioner did not file a motion to reconsider until November 2018, some 269 days later. The Director dismissed the motion as untimely and incomplete. On appeal, the AAO found that the underlying merits were not before it — only the procedural dismissal of the motion — and confirmed that the 30-day deadline for motions to reconsider carries no discretionary exception (unlike motions to reopen), so the dismissal was proper. The appeal was therefore dismissed without any review of the substantive eligibility issues.
What failed: The Petitioner filed its motion to reconsider 269 days after the denial, far exceeding the 30-day regulatory deadline. Unlike motions to reopen, motions to reconsider have no discretionary exception for untimely filing, so the Petitioner's explanation that it never received the denial notice could not save the motion. Because the appeal only challenged the dismissal of the motion — not the underlying denial — the substantive eligibility issues were never reached.
Takeaway: Petitioners must file motions to reconsider within 30 days of a denial decision; there is no regulatory discretion to excuse late motions to reconsider (unlike motions to reopen). If you miss this window, you should file a direct appeal on a Form I-290B instead, within the applicable appeal deadline.
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-1C criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The Petitioner filed its motion to reconsider 269 days after the denial, far exceeding the 30-day regulatory deadline
- Unlike motions to reopen, motions to reconsider have no discretionary exception for untimely filing, so the Petitioner's explanation that it never received the denial notice could not save the motion
- Because the appeal only challenged the dismissal of the motion — not the underlying denial — the substantive eligibility issues were never reached.
Petitioner's claim that late filing of the motion to reconsider was beyond its control due to not receiving the denial notice — the regulation at 8 C.F.R. § 103.5(a)(1)(i) does not provide discretionary relief for untimely motions to reconsider (only motions to reopen), and the denial was mailed to the address of record.
Completed
I-140 filed
President of a gas station and convenience store
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2020-08-31
AAO decision — Dismissed
The AAO dismissed the appeal because the Petitioner's motion to reconsider was filed 269 days after the denial decision, well beyond the 30-day regulatory deadline, and no discretionary exception exists for untimely motions to reconsider (as opposed to motions to reopen).
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.
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