Good news — this case cleared the first bar
The AAO withdrew the Director's denial because it lacked adequate analysis and explanation, and remanded for a new decision. The AAO also identified specific deficiencies in the record — including insufficient staffing evidence and unclear executive duties — for the Director to address on remand.
A mining equipment sales and distribution company filed an EB-1C petition to permanently employ its CEO. The Texas Service Center Director denied the petition, finding the Beneficiary would not serve in an executive capacity. The AAO withdrew the Director's decision on procedural grounds — the denial lacked adequate explanation, violating the Director's duty under 8 C.F.R. § 103.3(a)(1)(i). However, the AAO also identified substantive gaps in the record: the job duties described appeared to be hands-on sales and marketing tasks rather than executive direction, and the company lacked documented staff sufficient to relieve the Beneficiary of non-qualifying work. The matter was remanded for a new decision with an opportunity for the Petitioner to submit additional evidence.
What failed: The Petitioner's job description for the CEO included activities like market research, client acquisition, and supplier outreach — which the AAO characterized as operational sales tasks, not executive direction. The company could document only two employees at the time of filing, far fewer than the organizational chart implied, undermining the claim that sufficient staff supported an executive role. Tax records needed to verify staffing were not included in the record.
Takeaway: EB-1C petitions must clearly distinguish executive direction from hands-on operational tasks, and must include contemporaneous payroll and tax records proving that sufficient subordinate staff actually existed at the time of filing to relieve the executive of non-qualifying duties.
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's job description for the CEO included activities like market research, client acquisition, and supplier outreach — which the AAO characterized as operational sales tasks, not executive direction
- The company could document only two employees at the time of filing, far fewer than the organizational chart implied, undermining the claim that sufficient staff supported an executive role
- Tax records needed to verify staffing were not included in the record.
The lengthy description of the Beneficiary's proposed duties was found insufficiently detailed to establish primarily executive functions — activities like penetrating new markets, securing clients, and refining sales strategy were viewed as operational sales/marketing tasks rather than directing management.
The 'employee details' document showed only two employees (besides the Beneficiary) at time of filing, not the four claimed by the Petitioner, undermining the claim that sufficient staff existed to relieve the Beneficiary of non-qualifying duties.
The record lacked federal and state employer quarterly tax returns for Q1 2016 to verify staffing levels at the time of filing.
The job description referenced oversight of subordinate positions (branch manager, warehouse staff, sales manager, account executives) that did not appear to be filled at the time of filing.
Evidence regarding the Beneficiary's spouse as a financial manager/accounting employee lacked supporting documentation of actual employment, work performed, or compensation received in 2016.
The Director failed to provide an adequate analysis of the evidence submitted, denying the Petitioner a fair opportunity to contest the decision.
The Director did not explain specific reasons for the denial or why the evidence failed to satisfy the burden of proof under INA § 291.
The Director did not satisfy the affirmative duty under 8 C.F.R. § 103.3(a)(1)(i) to fully explain the reasons for denial.
Completed
I-140 filed
Chief Executive Officer of a mining equipment sales and distribution company
Completed
Texas Service Center — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2017-10-31
AAO decision — Remanded
The AAO withdrew the Director's denial because it lacked adequate analysis and explanation, and remanded for a new decision. The AAO also identified specific deficiencies in the record — including insufficient staffing evidence and unclear executive duties — for the Director to address on remand.
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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