dismissed EB-1A Case: Music

(b)(6)
DATE: FEB 0 1 2013 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Servil'l'S 
Administrative Appeals Office (A/\0) 
20 Massachust:!ls Ave., N.W., MS 2<l'JO 
· Washington, DC 20529-20'JO 
U.S. Citizenship 
and Immigration 
· Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b )(1 )(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. AJI of the document~ 
related to this matter have been returned to the office that originally decided your case. Pkasc be advised 
that any further inquiry that you might h~ve concen1ing your case must be made to that office. 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas .Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal based on· its withdrawal. The AAO will also enter a separate administrative finding · 
of willful· material misrepresentation.· · 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts as a conductor, 
pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A). The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through . the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) through (x). The petitioner 
.must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel submitted a brief and additional 
evidence. The AAO notes that counsel, who was 
retained for the first time on appeal, stated that he "does not have a copy of the record of pro-ceedings'' 
and indicates that he had made a Freedom of Information Act (FOIA) request for a copy of the record 
and requests an extension of time to respond. There is no statutory or regulatory provision that requires 
the AAO to hold an appeal in abeyance while a FOIA request is pending. 
On December 24, 2012, in accordance with the regulation at 8 C.P.R. § 103.2(b)(16)(i), the AAO 
issued a notice advising the petitioner of derogatory information indicating, in part, that he falsely 
claimed to have received two international awards for conducting. The notice specifically stated that 
the petitioner "signed the Form 1-140 petition under penalty of perjury that the petition and the 
evidence submitted with it... are all true and correct." 
On January 14, 2013, counsel responded to the notice by requesting that the appeal be withdrawn. 
Counsel's request will be granted. A withdrawal may not be retracted and may not be refused. 
8 C.P.R.§ 103.2(b)(6); Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). The appeal will be dismissed 
based on its withdrawal. 
Although the AAO acknowledges the withdrawal, the remaining issues that must be addressed are: 
(1) whether the petitioner sought to procure an immigration benefit through willful misrepresentation 
of a material fact; and, if so, (2) whether the withdrawal of the appeal constitutes a timely recantation 
of the misrepresentation. 
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I. MISREPRESENTATION 
A. Legal Authority 
Section 212(a)(6)(C) of the Act provides: 
Misrepresentation. - (i) In gener~l. - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure (or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
-As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that 
the alien willfully make a material misstatement· to a. government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 
288, 289-90 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. · See 
Matter ofTijam, 22 I&N Dec. 408, 425 (BIA 1998); Matter of Healy and Goodchild, 17 I&N Dec. 
22, 28 (BIA 1979). To be considered material, the misrepresentation must be one which "tends .to 
shut off a line of inquiry which is relevant to the alien's eligibility, and which might well have 
resulted in a proper determination that he be excluded." Matter of Ng, 17 I&N Dec. 536, 537 (BlA 
1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, he or she must determine: 1) that the petitioner or beneficiary made a false 
representation to an authorized official of the United States government; 2) that the 
misrepresentation was willfully made; and 3) that the fact misrepresented was material. See 
Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BlA 1961); 
Matter of Kai Hing Hui, 15 I&N Dec. at 288. · · 
B. Analysis 
The AAO is making a formal finding of willful misrepresentation of a material fact that should be 
considered in any future proceeding where the petitioner's admissibility is an issue .1 
Regarding the award, the AAO's notice stated: 
1 It is important to note that while it may present the opportunity to enter an administrative finding of willful 
material misrepresentation, the immigrant visa petition is not the appropriate forum for finding an alien 
inadmissible. See Maiter of 0, 8 I&N Dec. 295 {BIA 1959). Instead, the alien may be found inadmissible at 
a later date when he or she subsequently applies for admission into the United States or applies for 
adjustment of status to that of a permanent resident. See sections 212(a) and 245(a) of the Act, 8 U.S:C. §§ 
1182(a) and 1255(a). 
(b)(6)Page 4 
[Y]ou submitted a color photocopy of the award, but your name is handwritten in original 
ink. Although no translation was provided as required by regulation, it appears to state that it 
is for third place at the in the year 2000. 
However, the award also states that it was signed on September 16, 2004 in Trento, Italy. In 
addition, according to the official website at not 
only was there not a competition held in 2000 (there was one in 1999 and one in 2001 ), but. it 
appears that 2004 was the 8
1
h annual competition. Furthermore, your name does not appear 
on the website's list of winners for any year. According to the website, the third place winner 
for the award in 2004 is listed as Mr. 
website at contains a photograph 
of the certificate he received. In comparing the photograph of the award received by Mr. 
with the copy you submitted, including the signatures, it appears they are 
identical except that both the name of the winner and the year of the award have been 
changed (from 2004 to 2000). 
Regarding the award, the AAO's·notice stated: 
[I]n the original filing, you provided a signed certificate. On appeal, you submitted an 
unsigned copy· of the same certificate. On appeal, you submitted an email from 
with information regarding the purported judges of the 2001 festival. On page 1 of 
the email, the author provides the website for the festival. According to the website at 
_ it appears that the first time the 
festival was held was 2010, not 2001 as claimed. Furthermore, the information provided in 
the email regarding the judges of the purported 2001 festival matches the information on the 
website at _ about the judges 
of the 2011 festival. Finally, according to the website at 
there are numerous categories in 
which prizes are awarded and first place winners are awarded a statue. The certificate you 
provided does not list the category for which you supposedly won, rather it simply states that 
you and your choir were "aw~ded a First Prize." 
The AAO notice also stated that "[y]ou signed the Form 1-140 petition under penalty of perjury that the 
petition and the evidence submitted with it are all true and correct. The derogatory evidence discussed 
above raises serious concerns regarding the credibility of the remaining evidence." 
The AAO further advised that it is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will 
not suffice. Matter of Ho, 19 I&N Dec. [582, 586, 591-92 (BIA 1988)]. Finally, the AAO quoted 
section 212(a)(6)(C) of the Act, quoted above. 
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The AAO concluded that by filing the instant petition and submitting the evidence described above, 
the petitioner appears to have sought to procure a benefit provided under the Act through 
misrepresentation and that, unless the petitioner is able to provide substantial evidence to overcome, 
fully and persuasively, all of the above findings, the AAO would dismiss the appeal and enter a 
formal finding of misrepresentation into the record. As noted in the AAO's previous notice, any 
finding of misrepresentation will be considered in any future proceeding where admissibility is an 
issue. 
As pr.eviously mentioned, counsel responded to the notice by withdrawing the appeal. The petitioner 
did not attempt to explain or otherwise rebut the AAO's notice of derogatory information. 
In this case, the record shows that the petitioner misrepresented the petitioner's receipt of two 
international awards. An immigration officer will deny a visa petition if the petitioner submits 
evidence that contains false information. See section 204(b) of the Act. In general, a few errors or 
minor discrepancies are not reason to question the credibility of an alien or an employer seeking 
immigration benefits. See Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 694 (9th Cir., 
2003)(upholding the AAO's finding that evidence in that matter was not credible). However, if a 
petition includes serious errors and discrepancies, and the petitioner fails to resolve those errors and 
discrepancies after an officer provides an opportunity to rebut or explain, then the inconsistencies 
will lead USCIS to conclude that the facts stated in the petition are not true. See Matter of Ho, 
19 I&N Dec. at 591. 
First, the petitioner repeatedly made false claims regarding receipt of the two awards. A 
misrepresentation can be made to a government official in an oral interview, on the face of a written 
application or petition, or by submitting evidence containing false information. INS Genco Op. No. 
91-39, 1991 WL 1185150 (April 30, 1991). Here, the petitioner's claims in support of the Fonn 1-
140 petition constitute a false representation to a government official. 
· Second, the AAO finds that the petitioner willfully made the misrepresentation. The petitioner 
signed the Fonn 1-140 petition, certifying under penalty of perjury that the petition and the submitted 
evidence are all true and correct. See section 287(b) of the Act, 8 U.S.C. § 1357(b); see also 
8 C.F.R. § 103.2(a)(2). More specifically, the signature portion of the Form 1-140, at part 8, 
requires the petitioner to make the following affirmation: "I certify, under penalty of perjury under 
the laws of the United States of America, that this petition and the evidence submitted with it are all 
true and correct." On the basis of the petitioner's signed I-140 affirmation, made under penalty of 
perjury, the AAO finds that the petitioner willfully and knowingly made the misrepresentation. 
Furthermore, the regulation at 8 C.F.R. § 102.2(a)(2) provides that "[b]y signing the application or 
petition, the applicant or petitioner ... certifies under penalty of perjury that the application or 
petition, and all evidence submitted with, either at the time of filing or· thereafter, is true and 
correct." 
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Third, the evidence is material to the petitioner's eligibility. To be considered material, a false 
statement must be shown to have been predictably capable of affecting the decision of the decision­
making body. Kungys v. U.S., 485 U.S. 759 (1988). In the context of a visa petition, a 
misrepresented fact is material if the misrepresentation cuts off a line of inquiry which is relevant to 
the eligibility criteria and that inquiry might well have resulted in the denial of the visa petition. See 
Matter ofNg, 17 l&N Dec. at 537. 
As the false award claims relate to the petitioner's claimed eligibility for the regulatory criterion at 
8 C.F.R. § 204.5(h)(3)(i), it is material to this proceeding. Accordingly, the AAO concludes that the 
misrepresentation was material to the petitioner's eligibility. 
By filing the instant petition and falsely claiming receipt of these awards, the petitioner has sought to 
procure a benefit provided under the Act through willful misrepresentation of a material fact. Due to 
the AAO's finding that the petitioner made a false claim, the AAO affirms the finding that the 
petitioner . has willfully misrepresented a material fact. This finding of willful material 
misrepresentation shall be considered in any future proceeding where admissibility is an issue. 
C. Effect ofwithdrawal on the AAO's finding of willful material misrepresentation 
As discussed, the AAO provided the petitioner with notice of its serious doubts regarding the 
credibility of the submitted evidence. The petitioner did not challenge the AAO's preliminary 
findings. 
A timely retraction of a misrepresentation can serve as a defense to inadmissibility under section 
212(a)(6)(C)(i) of the Act. See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949); Matter of M-, 9 l&N 
Dec. 118 ·(BIA 1960). For the retraction to be effective, it must be done "voluntarily and without 
prior exposure of [the] false testimony." Matter of R-R-, 3 I&N Dec. at 827; see also Matter of 
Namio, 14 l&N Dec. 412, 414 (BIA 1973) (holding that recantation of false testimony one year after 
the event, and only after it. became apparent that the disclosure of the falsity of the statements was 
imminent, was not voluntary or timely). 
Here, there has been no acknowledgement of the misrepresentation on the part of the petitioner, 
much less a timely and voluntary correction of such misrepresentation . See Matter of M-, 9 I&N Dec. 
at 119. Without an admission to and correction of the misrepresentation, there can be no retraction 
or recantation. Counsel's request to withdraw the petition, without comment on the 
misrepresentation does not have the effect of a recantation . 
Even if the petitioner had retracted the material misrepresentation following receipt -of the AAO's 
notice, the retraction would not overcome an adverse finding since the retraction would have been 
made when the disclosure of the misrepresentation was imminent or under the threat of being 
revealed. See Matter of Namio, 14l&N Dec. at 414. 
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The petitioner's withdrawal of the petition cannot be considered a timely and voluntary retraction of 
the petitioner's false testimony. As such, the petitioner's withdrawal of the petition does not 
overcome or nullify the fact that the petitioner has sought to procure immigration benefits by willful 
misrepresentation of a material fact. 
II. CONCLUSION 
By filing the instant petition and submitting demonstrably false evidence, the petitioner has sought to 
procure a be.11efit provided under the Act through the willful misrepresentation of a material fact. 
. This finding of material misrepresentation shall be considered in any future proceeding wh~re 
admissibility is an issue. While the petitioner has chosen to withdraw his petition, this does not 
negate the AAO's finding that the petitioner has sought to procure immigration benefits through 
material representation of a material fact, which may render the beneficiary inadmissible in future 
proceedings. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. 
ORDER: 
I 
The appeal is dismissed based on the withdrawal of the petition. The AAO enters a 
separate finding of willful misrepresentation of a material fact. 
· FURTHER ORDER: The AAO finds that the petitioner knowingly misrepresented a material fact in 
an effort to mislead USCIS on elements material to his eligibility for a benefit 
sought under the immigration laws of the United States.