Good news — this case cleared the first bar
The AAO withdrew SCOPS' third denial and remanded the matter because SCOPS failed to afford the Petitioner 30 days to submit a brief after reopening the proceeding on its own motion in December 2025, as required by 8 C.F.R. § 103.5(a)(5)(ii).
Next step: a full merits review weighing all the evidence together.
SCOPS denied this EB-1A petition three times, with the third denial coming after SCOPS reopened the proceeding on its own motion in December 2025. However, SCOPS failed to provide the Petitioner the 30-day opportunity to submit a brief required by 8 C.F.R. § 103.5(a)(5)(ii) before issuing an unfavorable decision. The AAO found this procedural error dispositive and withdrew SCOPS' decision, remanding for a new decision. Notably, SCOPS had previously found the initial evidentiary threshold met but concluded the petitioner had not demonstrated sustained national or international acclaim at the final merits stage. The merits were not addressed by the AAO in this remand.
What worked: The Petitioner successfully identified a clear procedural violation—SCOPS denied the petition after reopening it sua sponte without providing the required 30-day brief period under 8 C.F.R. § 103.5(a)(5)(ii), which was sufficient to secure a remand.
What failed: The petition had not yet succeeded on the merits; SCOPS had found the initial evidentiary criteria met but concluded the petitioner failed to demonstrate sustained national or international acclaim at the final merits step across multiple review rounds.
Takeaway: When USCIS reopens a proceeding on its own motion, practitioners should immediately verify whether the required 30-day brief period has been granted and raise a timely objection if it has not, as procedural compliance can be a separate, winning basis for appeal. On remand, the petitioner will need to address the final merits determination regarding sustained national or international acclaim.
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-1A criteria.
● Evidence that moved the needle
- The Petitioner successfully identified a clear procedural violation—SCOPS denied the petition after reopening it sua sponte without providing the required 30-day brief period under 8 C.F.R
- § 103.5(a)(5)(ii), which was sufficient to secure a remand.
● Evidence that wasn't enough alone
- The petition had not yet succeeded on the merits
- SCOPS had found the initial evidentiary criteria met but concluded the petitioner failed to demonstrate sustained national or international acclaim at the final merits step across multiple review rounds.
Completed
I-140 filed
Cloud technology expert
Completed
SCOPS — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2026-05-07
AAO decision — Remanded
The AAO withdrew SCOPS' third denial and remanded the matter because SCOPS failed to afford the Petitioner 30 days to submit a brief after reopening the proceeding on its own motion in December 2025, as required by 8 C.F.R. § 103.5(a)(5)(ii).
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.