Date of Decision: January 15, 2020
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Software Development
Beneficiary Information
Profession: Chief Technology Officer
Field: Software Development
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The petitioner, a developer of software applications, sought to permanently employ the beneficiary as its Chief Technology Officer under the EB-1C classification for multinational executives or managers. The petitioner aimed to demonstrate that the beneficiary, who was previously employed abroad in a similar role, would continue to serve in an executive capacity within the United States.
Key Issues
The Texas Service Center initially denied the petition on two grounds. First, the USCIS concluded that the petitioner did not sufficiently establish that the beneficiary would be employed in the United States in a managerial or executive capacity. Secondly, the petitioner failed to demonstrate that the beneficiary was employed in such a capacity abroad. Additionally, the petition was considered abandoned as the petitioner did not submit a timely response to the Request for Evidence (RFE).
USCIS Findings
Upon review, the Administrative Appeals Office (AAO) found that the Director of the Texas Service Center erred in their decision to deny the petition due to abandonment. The AAO noted that the petitioner argued the RFE response was timely, considering the regulations that allow an additional three days for responses by mail. The AAO agreed that the response was within the allowable timeframe and remanded the case for further review by the Director, with instructions to consider whether the petitioner’s filing qualifies as a motion to reopen.
Supporting Evidence
The AAO considered the petitioner’s argument that the RFE response was timely based on the regulations allowing additional days for mail service. However, the AAO did not make a determination on the merits of the petition itself, leaving those considerations to be addressed in the remanded proceedings.
Additional Notes
The remand order does not indicate that the petitioner has overcome the substantive grounds for the initial denial. The Director is instructed to reconsider the case, especially focusing on the timeliness of the petitioner’s response and whether the petition meets the criteria for a motion to reopen.
Conclusion
Final Determination: The decision of the Director was withdrawn, and the case was remanded for further review.
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