The Situation

By the time the case reached me, another firm had filed the EB-1C petition and USCIS had issued a request for evidence. I came in to answer it. My client was the principal of a small, family-run hotel chain in the United States, seeking the multinational-manager classification. He had run the family’s affiliate abroad, then came to the U.S. on an L-1 and spent several years running the company before the petition was filed.

The request was unremarkable, the standard template an examiner sends on any petition in this category. The question written between the lines was familiar: was my client primarily an executive, or just the busiest employee of a small business?

The Strategy

I asked my client, his direct reports, and the general manager of the affiliate abroad to keep contemporaneous daily logs, starting the day we began working on the RFE response. Not a job description written after the fact. A real-time record, kept by twelve people across both companies, of what each of them actually did, day to day. I figured such a record would be harder to dismiss than one written for the RFE response. I told them not to stop tracking their daily activities until the case was won. Read together, these logs would put my client where he belonged: at the top of a multi-tiered structure, with managers and supervisors between him and the work of running a few small hotels.

The Denial That Was Never Mailed

The petition was denied anyway, on a single ground: in the agency’s verdict, my client neither had been nor would be employed in a primarily managerial or executive capacity “except in title only.”

I learned the petition had been denied from a status update on the agency’s website. But the written denial was slow in arriving, and then it became increasingly clear that it might not arrive at all. Or not arrive until after the appeal deadline. What does one appeal if there’s no written denial to appeal? That was the question. I answered by filing a motion to reconsider a decision I had not seen, anchored in the one thing I knew for certain about it: that the agency had failed to deliver the decision, and owed it to us. The regulation says as much: “The petitioner shall be informed in plain language of the reasons for denial and of his or her right to appeal.” 8 C.F.R. § 204.5(n)(2). It took repeated requests, the intervention of an AILA liaison, and more than two months before the decision finally reached me. By then the motion had been received and accepted, so it preserved our ability to continue fighting the case. Had I not filed that motion, the appeal window would have passed and the denial I had not seen would have become final.

One Log of Twelve

USCIS granted the motion, looked at the record a second time, and promptly affirmed. The decision convicts itself.

The regulation puts the duties at the center: managerial and executive capacity turn on what the employee primarily does. 8 C.F.R. § 204.5(j)(2). Of the twelve submitted logs, the agency engaged with one: the log of my client’s successor at the affiliate abroad, a different man performing the job my client had once performed there. It read two of that log’s ten days and analyzed those duties as my client’s own. The other eleven logs, my client’s own among them, went unmentioned.

Then came the contradictions. The duties were “detailed beyond the requirements” and “too numerous to include all specific duties.” The same duties were “vague and generalized.”

“The daily/hourly duties provided for both the U.S. petitioner and the business entity abroad are detailed beyond the requirements and are too numerous to include all specific duties. These vague and generalized descriptions are of limited evidentiary value and are not persuasive on the issue of whether the beneficiary is employed in an executive role.”

I filed a second motion and took that decision apart line by line: the eleven unread logs, the successor mistaken for my client, the contradictions on the denial’s pages. The second motion was denied too, a boilerplate with no further reasoning beyond the same repeated assertions. I kept arguing the merits but no one seemed to care about them. And my client was growing despondent.

The Conduct, Not the Merits

By the third motion the pattern was plain. First we had to fight to receive the denial at all. Then we had to fight to make USCIS read what we filed. In the brief I called it what it was: bullying, wearing the petitioner down until he gives up. Most would have. My client did not, which is the only reason there was a third motion to file. Which is also the reason he has a green card.

So that motion stopped arguing the merits and argued the agency’s conduct. Its own Adjudicator’s Field Manual, retired in May 2020 but in force then, instructed examiners to know the file, to base each decision on the evidence in it, and to explain that decision clearly. I set the handling of this case against the manual’s own standards and asked the agency to measure the one by the other.

The Result

USCIS approved the petition while referencing my second motion. The order, after three denials, three motions, and seven months, ran two sentences:

“A complete review of the record of proceeding, including your motion, indicates that the grounds for denial have been overcome. Accordingly, IT IS ORDERED that your petition be approved.”

I never won the argument I was trying to make on the merits. I won the one the agency could not deny.