dismissed EB-1A Case: Wine Expert / Enologist

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DAT E: AUG 0 5 2015 FILE#: 
PETITION RECEIPT#: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Secu•·ity 
U.S. Citizenship and Immigr ation Services 
Admini strative Appeals Office (AAO) 
20 Massachusetts Ave., N.W ., MS 2090 
Washin gton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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 : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case , you may file a motion requesting us to reconsider our decision 
and/or reopen the proceeding. The requirements for motions are located at 8 C .F.R. § I 03.5. Motions must be 
filed on a Notice of Appeal or Motion (Form I-2908) within 33 days of the date of this decision . The Fonn 
1-2908 web page (www.uscis.gov/i-290b) contains the latest infonnation on fee, filing location, and other 
requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
/%-<Y 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, initially approved the preference visa petition on 
April 28, 2011. Subsequently, the director issued a notice of intent to revoke the approval of the 
petition (NOIR) on June 24, 2014. In a Notice of Revocation (NOR), dated November 20, 2014, the 
director ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form I-140) with 
a finding that the self-petitioner misrepresented a material fact while seeking an immigration benefit. 
The matter is now before the Administrative Appeals Office (AAO) on appeal.' The appeal will be 
dismissed. We will also affirm the director's separate administrative finding of willful material 
misrepresentation. 
The petitioner seeks classification as an "alien of extraordinary ability" in business as a wine expert and 
enologist, pursuant to section 203(b )(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1 )(A), which makes visas available to aliens who can demonstrate their extraordinary ability 
through sustained national or international acclaim and whose achievements have been recognized in 
their field through extensive documentation. The director determined that the petitioner had not 
satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires 
documentation of a one-time achievement or evidence that meets at least three of the ten regulatory 
criteria, in addition to the finding that the petitioner had misrepresented material facts in violation of 
section 212(a)(6)(C)(i). 
Section 205 of the Act, 8 U.S.C. § 1155, states, in pertinent part, that the Secretary of Homeland 
Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
1 The petitioner's Form 1-2908 Notice of Appeal or Motion (Fonn I-2908), indicates within Part 1 that the appeal 
is related to the receipt number of the petitioner's Form 1-485, Application to Register Permanent Residence or 
Adjust Status (Fonn 1-485). There is no appeal from the petitioner's Form 1-485. However, the Form 1-2908 
also indicates within Part 3 that the appeal is related to a Form 1-140, and the discussion on appeal also relates to 
the Form 1-140. Therefore , the petitioner's intent to appeal the Form 1-140 is clear. 
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By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. !d. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. !d. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. !d. 
I. ELIGIBILITY FOR THE CLASSIFICATION SOUGHT 
The petitioner does not contest the director's determination that the evidence does not establish his 
eligibility for the classification sought. Specifically, the director found that the petitioner had not 
established that he meets any of the regulatory criteria. Accordingly, he has abandoned any such 
eligibility claims. Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011 , 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found 
the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). In fact, the 
petitioner expressed that he accepted the director's determination that he did not meet his burden of 
proof, and that he intended to reapply by filing a new petition. The sole issue on appeal is the director's 
finding of material misrepresentation. 
II. MISREPRESENTATION 
A. Legal Authority 
Section 212(a)(6)(C) of the Act provides: 
Misrepresentation. - (i) In general. - 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 individual 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 individual'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 (BIA 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 
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misrepresentation was willfully made; and (3) that the fact misrepresented was material. See 
Matterof M-, 6 I&N Dec. 149 (BIA 1954); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961); 
Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
B. Analysis 
For the reasons discussed below, we uphold the director's decision to deny the petition and finding of 
willful misrepresentation for the reasons the director specified. USCIS may consider a formal finding 
of willful misrepresentation of a material fact in any future proceeding where the petitioner's 
admissibility is an issue.2 
The director concluded the petitioner submitted evidence that constituted misrepresentations of material 
facts in violation of section 212( a)(6)(C)(i) of the Act under the following regulatory criteria: 
• The prizes or awards criterion at 8 C.F.R. § 204.5(h)(3)(i); 
• The contributions of major significance criterion at 8 C.F.R. § 204.5(h)(3)(v); 
• The authorship of scholarly articles criterion at 8 C.F.R. § 204.5(h)(3)(vi); and 
• The high salary or significantly high remuneration criterion at 8 C.F.R. § 204.5(h)(3)(ix). 
Second, the director determined , using the website _ that the petitioner was not 
the author of two articles that garnered two awards. Once again, the director provided this information 
to the petitioner in the NOIR. The titles of the two articles in question under the authorship of scholarly 
articles criterion at 8 C.F.R. § 204.5(h)(3)(vi) are, and · 
that both appeared in . 
2 While the adjudication of the Fonn I-140 Immigrant Petition for Alien Worker (Fonn 1-140) may present the 
opportunity to enter an administrative finding of willful material misrepresentation, the immigrant visa petition is 
not the appropriate forum for finding a self-petitioner or beneficiary inadmissible . See Matter of 0 , 8 J&N Dec. 
295 (BIA 1959). Instead, the self-petitioner or beneficiary 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 
pennanent resident. See sections 212(a) and 245(a) ofthe Act, 8 U.S.C. §§ 1182(a) and l255(a). 
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. The petitioner submitted awards from 2008 relating to these articles titled 
The petitioner relied on the articles to meet the scholarly articles criterion at 8 C.F.R 
§ 204.5(h)(3)(vi). 
Third, regarding the high salary or significantly high remuneration criterion at 8 C.F.R. 
§ 204.5(h)(3)(ix), the director noted a conflict between information the petitioner provided while 
applying for his nonimmigrant visa and the information he provides with the immigrant petition. The 
director stated: 
Furthermore, the Department of State's (DOS') records show the petitioner previously 
applied for a B-2 nonimmigrant visa in China on January 5, 2011. On his 
nonimmigrant visa application, he listed his primary occupation as Business, and that he 
was the President for and earned a monthly salary of 
"70,000" (which USCIS assumes to be RMB 70,000, and which USCIS equates to 
RMB 840,000 per year). He indicated that no one assisted him in filling out that 
application. 
USCIS notes the wage 
the petltwner reported to the DOS (RMB 840,000) is 
significantly different from the wage reported [in the income certificate the petitioner 
submitted in support of the Form I -140] to USCIS two months after the petitioner 
applied for his nonimmigrant visa (RMB 2,000,000). 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. ld. 
On appeal, the petitioner submits a brief, a personal statement, testimonial evidence relating to the 
petitioner's character and evidence relating to his business reputation. The petitioner does not address 
the director's bases for concluding that the documentary evidence on which his petition approval was 
based was falsified. Instead, the petitioner asserts that he provided original documents to his attorney, 
but he did not review the translations of the evidence that was subsequently submitted with the Form I-
140. He explains that he was also not aware of incorrect translations submitted with the petition until 
the revocation. According to the petitioner, his own staff in China and some of the attorney's staff 
handled his case and the translations. 
The petitioner's appeal focuses on the director's passing references to the insufficiency of the 
translations; however, as we have detailed above, the director's bases for finding misrepresentation 
were not simply that the translations were insufficient or incorrect. Rather, the director obtained 
publicly available information from patent websites and scholarly article search engines that 
contradicted the evidence the petitioner submitted. The petitioner's statement does not address this 
publicly available information other than to assert that he did not authorize anyone to submit false 
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evidence and that he did not knowingly or willfully misrepresent the evidence in support of the petition. 
Finally, the petitioner requests that we withdraw the finding of misrepresentation, thereby enabling him 
to reapply by filing a new petition. 
The petitioner asserts within his statement dated December 23, 2014 that he did not provide, nor did he 
authorize the submission of any false documentation or any false claims in support of the present 
petition. While the petitioner discusses who prepared the translations, the petitioner does not offer an 
explanation of where the fraudulent foreign language evidence originated. Additionally, the petitioner's 
Personal Statement submitted when he filed the petition includes references to some of the 
misrepresented evidence listed above. For example, the statement reflects the petitioner received the 
Award in 2007, that he received a patent for 
2006, and that he authored the two articles titled and 
that both appeared in 
The petitioner's position that he had no knowledge of any evidence or 
eligibility claims that constitute material misrepresentations is not persuasive based on the evidence on 
record. 
The record contains correspondence dated October 30, 2014 from the Law Office of 
Following the issuance of the NOIR, requested the withdrawal of the 
petition, and indicated the misrepresentations originated from a junior attorney from the firm of the 
petitioner's authorized representative. The record does not contain a Form G-28, Notice of Entry of 
Appearance as Attorney or Accredited Representative (Form G-28) relating to The 
regulation at 8 C.F.R. § 292.4(a) provides that: 
An appearance must be filed on the appropriate form as prescribed by DHS [Department 
of Homeland Security] by the attorney or accredited representative appearing in each 
case. The form must be properly completed and signed by the petitioner, applicant, or 
respondent to authorize representation in order for the appearance to be recognized by 
DHS. The appearance will be recognized by the specific immigration component of 
DHS in which it was filed until the conclusion of the matter for which it was entered. 
As did not submit a Form G-28 to accompany the October 30, 2014 correspondence, he 
cannot 
be considered the petitioner's authorized representative. As such, was not 
authorized to withdraw the petition and his comments relating to the origin of the misrepresentations 
have limited probative value as he does not profess any first-hand knowledge of the preparation of the 
petition. 
The director sent the NOIR to both the petitioner's address of record and to his attorney of record, 
which is the same attorney that filed the appeal. Therefore, the petitioner's assertion that he was not 
aware of any false translations, or other documents submitted on his behalf, until the revocation is not 
persuasive. The director put the petitioner on notice of the false nature of several documents within the 
NOIR
, and subsequently granted the petitioner additional time in which to respond to the NOIR. 
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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. US , 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 en·ors 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. 
The petitioner submits new evidence on appeal that, according to the appellate brief, "puts forth his 
good character in rebuttal to the" final decision. At issue is whether evidence the petitioner, or his 
representative, submitted constituted misrepresentations of material facts under section 212(a)(6)(C)(i) 
of the Act. The petitioner offers no rebuttal relating to the director's bases for finding that the foreign 
language documents were themselves false (irrespective of the translations). The petitioner does not 
assert that he did not provide the original foreign language patent and articles, only that he was unaware 
of the content of their translations. As noted, the petitioner indicated in a signed statement 
accompanying the petition that he was both the inventor on the patent and the author of the two articles. 
The petitioner has not submitted independent objective evidence to establish that he is, in fact, a named 
inventor on a Chinese patent or that he authored the two submitted articles. Accordingly, the petitioner 
has not demonstrated by a preponderance of the evidence that he did not willfully misrepresent a 
material fact in support of this petition. 
First, the petitioner made multiple misrepresentations regarding his achievements. 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 ). The petitioner initially submitted to US CIS a patent and two scholarly 
articles. In his personal statement, which is in English and not translated, he presented himself as the 
designer of the patented technology and the author of the two articles. On appeal, he has not addressed 
the evidence from the patent websites and the scholarly articles search engine listing other individuals 
as the inventors of the patent and the authors of those articles. Accordingly, the petitioner's 
submissions and personal statement in support of the instant petition constitute false representations to a 
government official. 
Second, we find that the petitioner willfully made the above misrepresentations for the reasons 
discussed in this paragraph. The petitioner signed the Form I-140, 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 Fonn 
I-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, we find 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." The 
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petitioner also signed the personal statement, which is in English rather than a translation of a foreign 
language document, that accompanied the Form I-140. In this statement, he indicated he was the 
inventor on a patent and had authored two articles. 
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. US., 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 of Ng, 
17 I&N Dec. at 537. The patent is relevant to the petitioner's claim to have made contributions of 
major significance pursuant to 8 C.F.R § 204.5(h)(30(i). The petitioner submitted the articles as 
evidence that he has authored scholarly articles pursuant to 8 C.F.R § 204.5(h)(3)(vi). The income 
certificate pertains to the petitioner's claim to meet the high salary criterion at 8 C.F.R § 204.5(h)(3)(ix). 
As the false claims relate to the petitioner's claimed eligibility for the requested classification, they are 
material to this proceeding. 
By filing the instant petition and providing false information, the petitioner has sought to procure a 
benefit provided under the Act through willful misrepresentation of a material fact. Due to our finding 
that the petitioner made false claims, we find that has willfully misrepresented material facts. This 
finding of willful material misrepresentation shall be considered in any future proceeding where 
admissibility is an issue. 
Even if the petitioner did not apprise himself of what was submitted in support of his own petition as 
implied on appeal, such action constitutes deliberate avoidance and does not absolve him of 
responsibility for the content of his petition or the materials submitted in support of the petition. See 
Hanna v. Gonzales, 128 F. App'x 478, 480 (6th Cir. 2005) (finding that an applicant who signed his 
application for adjustment of status but who disavowed knowledge of the actual contents of the 
application because a friend filled out the application on his behalf was still charged with knowledge of 
the application's contents). Cf, Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 
498 U.S. 533 (1991) (finding that a represented party who signs his or her name to documents filed in 
court bears personal, non-delegable responsibility to certify truth and reasonableness of the documents 
and failure to meet that duty subject signor to Rule 11 sanctions). The law generally does not recognize 
deliberate avoidance as a defense to misrepresentation. See Bautista v. Star Cruises, 396 F.3d 1289, 
1301 (11th Cir. 2005); United States v. Puente, 982 F.2d 156, 159 (5th Cir. 1993). 
III. SUMMARY 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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FURTHER ORDER: We find that the petitioner knowingly misrepresented material facts in an effort 
to mislead users on elements material to his eligibility for a benefit sought 
under the immigration laws of the United States