Good news — this case cleared the first bar
The AAO withdrew the director's denial and remanded the case because the director failed to address the petitioner's portability argument under INA § 204(j), and additional evidence is needed to determine whether a qualifying corporate relationship existed and whether the beneficiary qualifies for portability.
The Nebraska Service Center denied an EB-1C petition for a senior manager of patent licensing at a mobile device company, finding no qualifying corporate relationship between the U.S. petitioner and the beneficiary's former foreign employer, and concluding the position was not primarily managerial. The AAO reversed the finding on managerial capacity, determining the beneficiary qualifies as a 'function manager.' However, the qualifying relationship issue remains unresolved because the petitioner's RFE response failed to include key requested documents and submitted an incomplete and potentially inaccurate certified translation. The AAO also found the director erred by never addressing the petitioner's INA § 204(j) portability argument. The case was remanded for further evidence and a new decision on both the qualifying relationship and portability questions.
What worked: The AAO accepted that the beneficiary's role as a senior patent licensing manager constitutes a qualifying 'function manager' position, noting that incidental non-managerial tasks do not defeat the primary managerial nature of the role.
What failed: The petitioner failed to respond to the director's specific RFE requests regarding corporate structure and the transaction agreement, and submitted a certified translation of a Finnish corporate report that was materially incomplete and contained apparent discrepancies, undermining the qualifying relationship evidence.
Takeaway: When filing an EB-1C petition involving a complex corporate restructuring, petitioners must respond directly and completely to every RFE request and ensure certified translations are fully accurate and complete, as omissions or errors in translations can be fatal to establishing the qualifying corporate relationship. Portability arguments under INA § 204(j) should be raised clearly and early, but remember that the underlying petition must first be approvable.
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 AAO accepted that the beneficiary's role as a senior patent licensing manager constitutes a qualifying 'function manager' position, noting that incidental non-managerial tasks do not defeat the primary managerial nature of the role.
● Evidence that wasn't enough alone
- The petitioner failed to respond to the director's specific RFE requests regarding corporate structure and the transaction agreement, and submitted a certified translation of a Finnish corporate report that was materially incomplete and contained apparent discrepancies, undermining the qualifying relationship evidence.
Evidence showing the beneficiary's position as senior manager for patent licensing qualifies as a 'function manager' under INA § 101(a)(44)(A)
Evidence that non-qualifying tasks performed by the beneficiary are only incidental to her managerial position and do not comprise the primary portion of her time
Parent company's list of qualifying entities included within the blanket L petition, naming the Canadian affiliate
SEC Form 20-F Annual Report for 2012 showing 100% ownership interest in the petitioning U.S. entity
Translation of the parent company's Operating Report and Account Closing 2013, which contained an untranslated Finnish heading in the right-hand column and a discrepancy where '100.00' appeared in translation but only a dash appeared in the original, rendering the translation incomplete and potentially inaccurate
RFE response, which failed to include any of the specifically requested materials regarding the qualifying relationship, corporate status, and transaction details
The director failed to address the petitioner's assertion that the beneficiary is eligible for portability under INA § 204(j), despite the argument being raised in the RFE response.
The director did not make a determination on whether the qualifying corporate relationship existed during the relevant period or when it was severed.
Completed
I-140 filed
Senior Manager, Patent Licensing at a mobile device manufacturer
Completed
Director, Nebraska Service Center — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2015-06-04
AAO decision — Remanded
The AAO withdrew the director's denial and remanded the case because the director failed to address the petitioner's portability argument under INA § 204(j), and additional evidence is needed to determine whether a qualifying corporate relationship existed and whether the beneficiary qualifies for portability.
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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