February 25, 2019


by Rabindra Singh

As the Lead Counsel in Add Chapter Design LLC v. Nielsen et al, 1:18-cv-06254, I am glad to share that after months of legal battle with the Department of Homeland Security (DHS) and other related parties in the United States District Court for the Northern District of Illinois, United States Citizenship and Immigration Services (USCIS) decided to approve our client’s previously denied L-1A extension petition.

Just when we were gearing up to file a Summary Judgement Motion against the Defendants, USCIS decided to reopen and reconsider its previous denial decision and e-mailed us an electronic approval notice. To our surprise, it all happened in just one day—as if lightning struck the slow moving and resistant turtle and transformed it into an agreeable rabbit!

Though I am extremely happy to report this success achieved through Federal District Court action, I am disappointed sharing how this was handled by the Defendants, including DHS, represented by the Office of Immigration Litigation (OIL) within the Department of Justice (DOJ). So much of tax payers’ money and some good intellectual resources have been better utilized if the adjudicating officer at USCIS or someone at the OIL would have carefully read either initial petition or Request for Evidence (RFE) response, or even our Federal Court Complaint.

It all started in March 2018 when USCIS’ California Service Center denied our client’s L-1A extension application even though we had provided not just adequate information and supporting documentary evidence to meet the preponderance of evidence standard but close enough to cross clear and convincing evidence evidentiary standard threshold.

Appalled to infer, through denial decision, that USCIS neither read our initial petition nor the RFE Response, we decided to straight away filed a Federal District Court Complaint seeking review of USCIS’ erroneous decision. We asserted in the complaint that USCIS in its decision failed to properly interpret and apply the relevant statute and disregarded its own binding policy memorandum in reaching an erroneous decision. We sought declaratory judgment by stating that USCIS’ actions were arbitrary, capricious, and not in accordance with law.

And, yes, we decided not to file an Appeal to the Administrative Appeals Office (AAO) or submit a Motion to Reopen and/or Reconsider to USCIS because it was not required by Immigration and Nationality Act (INA) in order to demonstrate ‘exhaustion of administrative remedies’ before filing a complaint in the Federal District Court.


Add Chapter Design LLC (Add Chapter USA), based in Chicago, Illinois, is an affiliate company of Add Chapter Dubai, a medium-sized advertising company based in Dubai, UAE. In addition to the beneficiary, Add Chapter USA employed just two (2) employees – a professional and a supervisory level worker—at the time of filing L-1A extension petition. On the other hand, the foreign affiliate company employed ten (10) employees in various professional, supervisory and administrative positions. Along with the extension petition, we provided information and supporting documents demonstrating U.S. company’s various new clients in the United States and explained what role beneficiary will continue to play in the growth and expansion of the newly formed company.[1]

Not surprisingly, USCIS issued a lengthy Request for Evidence (RFE) requesting, among various things, detailed statement of duties to be performed by the beneficiary; and how the beneficiary will supervise and control the work of those he will be supervising. The RFE also requested explanation to demonstrate that that there are sufficient persons employed by the U.S. entity to justify the addition of the beneficiary.

RFE response included detailed responsibilities to be performed by the beneficiary for each job duty as stated on previously submitted Letter of Support. We also provided detailed tabular chart listing beneficiary’s direct reports in both Dubai and Chicago offices; their job duties; and explained how beneficiary will continue to supervise his direct reports located at both locations.

Unfortunately, USCIS denied the extension petition, concluding that the beneficiary will not primarily perform managerial duties; and that the U.S. company failed to show that it employed sufficient personnel to relieve the beneficiary from performing the day-to-day duties required to run the business.


As immigration practitioners are aware, the Administrative Appeals Office (“AAO”) in Matter of Z-A-, Inc. Adopted Decision 2016-02 (AAO Apr. 14, 2016) specifically held that when determining whether a beneficiary’s job duties will be primarily managerial, USCIS adjudicating officer“must” consider the“totality of the record and weigh all relevant factors”including: the nature and scope of the petitioner’s business; the petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization; the scope of the beneficiary’s authority; the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary’s actual duties and role in the business.

Additionally, following the mandate of INA Section 101(a)(44)(C), the AAO in Matter of Z-A-, held that:

When staffing levels are considered in determining whether an individual will act as a manager, an officer mustalso take into account relevant evidence in the record concerning thereasonable needs of the“organization as a whole”, including any related entities within the “qualifying organization,” giving consideration to the organization’s overall purpose and stage of development.” [emphasis supplied]

Note that USCIS, through a policy memorandum[2], designated Matter of Z-A-, Inc. as an Adopted Decision. As such, this decision establishes a policy guidance that applies to and binds all USCIS employees. Also, note that USCIS personnel have been specifically directed to “follow the reasoning” in this decision in similar cases.

We argued that in denying our client’s L-1A extension petition, USCIS failed to follow its own binding policy guidance by neither considering beneficiary’s detailed job duties and associated responsibilities nor taking into consideration the “totality of the record and weighing all relevant factors” when determining that beneficiary’s job duties are not ‘primarily’ managerial in nature.

We also made the Court aware that though the denial focused solely on the staffing level of the U.S. company, USCIS failed to pay close attention to the entire organizational chart and relevant supporting documents that showed that the beneficiary not only will manage U.S. employees in Chicago office but continue to manage supervisory and professional level employees employed by the affiliate company in Dubai, U.A.E. As such, USCIS totally ignored its own binding policy guidance which specifically instructs all USCIS officers to treat “organization as a whole,”- including any related entities within the qualifying organization when adjudicating L-1A petitions.

Further, we argued that USCIS did not consider “organization’s overall purpose and stage of development” when determining that staffing level will not relieve beneficiary from primarily performing managerial duties. We also explained and documented that the U.S. company is an extension of the parent affiliate company based in Dubai, U.A.E. as both companies focus on the creative side of advertising, and employees in both offices collaborate on a day-to-day business to serve client in both Middle East and U.S. markets.


Until recently inflated preponderance of evidence standard is brought to its original level, providing as much information and supporting documentary evidence in support of any visa petition is crucial. All and any relevant arguments should be made, and all and any relevant supporting document should be provided when submitting initial petition and also when responding to an RFE. Know that strong administrative record is a must when challenging erroneous USCIS decisions in any Federal District Court.

[1]Note that USCIS had graciously approved New Company L-1A petition and granted first extension before eventually denying second (2nd) L-1A extension.

[2]PM-602-0131 dated April 14, 2016

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