Good news — this case cleared the first bar
The AAO withdrew the Director's denial and remanded the case, finding the Director applied the wrong regulatory framework to calculate the three-year qualifying period for the beneficiary's foreign employment. The AAO concluded that the correct reference point was the date the L-1 petition was filed, not the date of the beneficiary's initial U.S. entry in F-2 status.
A logistics company filed an EB-1C immigrant petition for its CEO, who had worked for a foreign affiliate from June 2016 to December 2017 before entering the U.S. in F-2 status and later obtaining L-1A nonimmigrant status. The Director denied the petition, reasoning that because the beneficiary entered the U.S. in F-2 status rather than for work purposes, the qualifying period ran backward from the petition filing date and thus the foreign employment was insufficient. The AAO disagreed, holding that because the beneficiary was already working for the petitioner in the U.S. at the time of filing, the correct qualifying period was the three years preceding the initial L-1 petition filing date (June 2016 to June 2019), during which the beneficiary had more than one year of qualifying foreign employment. The matter was remanded for a merits decision, with the AAO flagging unresolved concerns about the beneficiary's actual title and the authenticity of the foreign employer's website evidence.
What worked: The petitioner successfully argued that the correct three-year qualifying period extended back to the date the L-1 petition was first filed (June 2019), rather than the I-140 filing date, which placed the beneficiary's foreign employment squarely within the required window. The AAO accepted the reasoning of the 2018 USCIS Policy Memorandum that the L-1 petition filing date is the proper reference point when the beneficiary was not initially admitted for work purposes.
What failed: The beneficiary's visa application describing his position as 'CEO ASSISTANT' (rather than CEO) was flagged as a credibility concern that will need to be addressed on remand. Additionally, the foreign employer's website printouts could not be independently verified, undermining documentary evidence of the foreign entity's operations and the beneficiary's role.
Takeaway: When a beneficiary initially enters the U.S. in a non-employment status before later obtaining L-1A status, petitioners should clearly document the timeline and rely on the L-1 petition filing date as the anchor for the three-year qualifying period. Separately, ensure that all evidence of foreign employment—including titles used on visa applications and corporate website records—is consistent and independently verifiable.
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
- The petitioner successfully argued that the correct three-year qualifying period extended back to the date the L-1 petition was first filed (June 2019), rather than the I-140 filing date, which placed the beneficiary's foreign employment squarely within the required window
- The AAO accepted the reasoning of the 2018 USCIS Policy Memorandum that the L-1 petition filing date is the proper reference point when the beneficiary was not initially admitted for work purposes.
● Evidence that wasn't enough alone
- The beneficiary's visa application describing his position as 'CEO ASSISTANT' (rather than CEO) was flagged as a credibility concern that will need to be addressed on remand
- Additionally, the foreign employer's website printouts could not be independently verified, undermining documentary evidence of the foreign entity's operations and the beneficiary's role.
The beneficiary was employed abroad by a qualifying foreign affiliate from June 2016 to December 2017, satisfying more than one year of foreign employment within the correctly calculated three-year window (June 2016 to June 2019).
The petitioner filed an L-1A nonimmigrant petition on the beneficiary's behalf in June 2019, establishing the proper reference point for calculating the one-year foreign employment requirement per the 2018 USCIS Policy Memorandum PM-602-0167.
The beneficiary's visa application describing his position as 'CEO ASSISTANT' raised unresolved questions about whether he actually served as CEO rather than an assistant to a CEO.
Website printouts from the foreign employer dated April 2019 could not be verified as authentic or confirmed to exist, raising concerns about the verifiability of the petitioner's and foreign affiliate's claims.
The Director incorrectly applied 8 C.F.R. § 204.5(j)(3)(i)(A) (qualifying period measured from petition filing) instead of 8 C.F.R. § 204.5(j)(3)(i)(B) (qualifying period measured from U.S. entry as a nonimmigrant) because the beneficiary was already working for the petitioner in the United States at time of filing.
The Director improperly disqualified use of the adjusted qualifying period by focusing on the manner in which the beneficiary first entered the United States (F-2 status) rather than on whether the beneficiary was working for a qualifying U.S. entity at the time of filing.
Completed
I-140 filed
Chief Executive Officer (CEO) of a logistics services company
Completed
Nebraska Service Center — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2022-06-02
AAO decision — Remanded
The AAO withdrew the Director's denial and remanded the case, finding the Director applied the wrong regulatory framework to calculate the three-year qualifying period for the beneficiary's foreign employment. The AAO concluded that the correct reference point was the date the L-1 petition was filed, not the date of the beneficiary's initial U.S. entry in F-2 status.
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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