This appeal was not successful at this stage
Both the motion to reopen and motion to reconsider were dismissed. The motion to reopen failed because counsel's declaration did not constitute independent evidence of non-receipt of the RFE, and the motion to reconsider failed because the Petitioner did not show the prior decision was based on incorrect law or policy.
A commercial airline filed an EB-1C petition to permanently employ a senior manager in its aircraft maintenance department. USCIS denied the petition after the Petitioner failed to respond to a Request for Evidence (RFE). The AAO previously dismissed the appeal and denied a first motion, finding the RFE was properly mailed. On a second combined motion, the Petitioner submitted a declaration from counsel claiming the RFE was never received, but the AAO found that attorney declarations do not constitute independent evidence. The AAO also rejected the Petitioner's argument that USCIS must prove the RFE was actually delivered, noting no regulation, statute, or precedent supports that standard. Both the motion to reopen and motion to reconsider were dismissed.
What failed: Counsel's declaration asserting non-receipt of the RFE was rejected because attorney statements are not independent evidence and must be corroborated. The Petitioner failed to provide any statute, regulation, or precedent establishing that USCIS bears the burden of proving actual delivery of an RFE. The new evidence submitted did not address the core issue of the latest decision or establish eligibility.
Takeaway: When claiming non-receipt of a USCIS notice, petitioners must provide independent corroborating evidence beyond attorney declarations, such as affidavits from office staff or mail logs. Counsel should also be prepared to cite specific legal authority when arguing that USCIS bears any burden regarding service of notices.
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
- Counsel's declaration asserting non-receipt of the RFE was rejected because attorney statements are not independent evidence and must be corroborated
- The Petitioner failed to provide any statute, regulation, or precedent establishing that USCIS bears the burden of proving actual delivery of an RFE
- The new evidence submitted did not address the core issue of the latest decision or establish eligibility.
Completed
I-140 filed
Senior manager in aircraft maintenance at a commercial airline
Completed
SCOPS — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2026-03-12
AAO decision — Dismissed
Both the motion to reopen and motion to reconsider were dismissed. The motion to reopen failed because counsel's declaration did not constitute independent evidence of non-receipt of the RFE, and the motion to reconsider failed because the Petitioner did not show the prior decision was based on incorrect law or policy.
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.