Successful Appeal of an I-140 Petition Denial for a Multinational Manager

Facts

Another law firm needed help in responding to an RFE from hell involving an immigrant visa petition for a multinational manager. The petitioner was one of several small hotel franchises run by the same immigrant family, with an affiliated entity abroad. The beneficiary was its principal and general manager. Not surprisingly, the USCIS primarily questioned the beneficiary’s performance in a managerial capacity. But it also questioned everything else, every single item in the petition, down to the way the petitioner’s properties looked on Google Maps photos. 

Strategy

While preparing the RFE response, I hit upon the idea of asking the beneficiary to start keeping detailed contemporaneous daily logs, a transcribed diary of all his business calls, discussions and activities. I asked him to keep writing it until we win the case because I could find no better way of proving his performance in a managerial capacity that was both compelling and credible. (And I wanted him to keep building that evidence in case we didn’t succeed on a first try). I worked with the petitioner’s foreign counsel to provide additional evidence of the qualifying relationship between the U.S. petitioner and its foreign affiliate. I wrote a very detailed response to the RFE effectively addressing all the issues.

Result

The RFE response resulted in the USCIS denial which somehow suspiciously got lost in the mail so that neither the petitioner, nor its former counsel, nor its new counsel received it. The lost denial decision threatened to derail the petitioner’s appeal options because the appeal clock was ticking and there was no substantive decision on the table to review and appeal. What can one appeal if there is nothing to appeal? -- that was the question. The answer I came up with was to file a timely motion to reconsider the missing denial anchored in an obscure USCIS regulation that requires the USCIS to explain its decisions in plain English and keep petitioners informed of their rights. After finally resending the original denial decision, denying the motion to reconsider the original denial, and then denying another motion to reconsider that denial that followed, the USCIS finally relented and approved the original I-140 petition on a third motion to reconsider.