remanded EB-1A Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 11, 2023 In Re: 28963111 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a business executive, seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first 
preference classification makes immigrant visas available to individuals 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 of the Texas Service Center denied the petition, concluding the Petitioner did not meet 
the initial evidentiary requirements for this classification by documenting his receipt of a major 
internationally recognized award, or in the alternative, by submitting evidence that satisfies at least 
three of the ten evidentiary criteria at 8 C.F.R. § 204.5(h)(3). The Director further concluded that the 
Petitioner had willfully mispresented material facts related to his past employment and professional 
accomplishments. The Petitioner subsequently filed combined motions to reopen and reconsider, in 
which he contested the Director's finding of willful misrepresentation. The Director dismissed the 
motions. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 53 7, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
Section 203(b)(1 )(A) of the Act makes immigrant visas available to nonc1t1zens who (1) have 
extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated 
by sustained national or international acclaim and whose achievements have been recognized in the 
field through extensive documentation; (2) seek to enter the United States to continue work in the area 
of extraordinary ability, and (3) will substantially benefit the United States upon their entry. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a pet1t10ner may demonstrate 
international recognition of their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). Absent such an achievement, the petitioner must provide 
sufficient qualifying documentation demonstrating that they meet at least three of the ten criteria listed 
at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain media, 
and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination). 
II. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Director denied the petition, in part, based on a conclusion that the Petitioner had willfully 
misrepresented material facts with respect to several criteria at 8 C.F.R. § 204.5(h)(3)(i)-(v). 
A finding of willful misrepresentation of a material fact against a petitioner requires the following 
elements: 1 
• The petitioner procured, or sought to procure, a benefit under U.S. immigration laws; 
• The petitioner made a false representation; 
• The false representation was willfully made; 
• The false representation was material; and 
• The false representation was made to a U.S. government official. 
Prior to denying the petition, the Director issued a notice of intent to deny (NOID) in accordance with 
8 C.F.R. § 103.2(b)(8) and 8 C.F.R. § 103.2(b)(16)(i) (stating that if a decision will be adverse to a 
petitioner and is based on derogatory information considered by USCIS and of which the petitioner is 
unaware, they shall be advised of this fact and offered an opportunity to rebut the information and 
present information on their own behalf before the decision is rendered). The Director advised that 
the derogatory information pertaining to the Petitioner's eligibility under the criteria at 8 C.F.R. 
§ 204.5(h)(3)(vi), (viii) and (ix) had been obtained by USCIS through "extensive research" conducted 
to validate his book publications, "open source queries" made in an effort to confirm his stated 
employment history with a publicly traded Chinese company, and review of a nonimmigrant visa 
1 See generally 8 USC1S Policy Manual J.2(B), https://www.uscis.gov/policy-manual. As outlined by the Board of 
Immigration Appeals, a material misrepresentation requires that one willfully makes 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 T&N Dec. at 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. Sec Matter of Tijam, 22 T&N Dec. 
408,425 (BIA 1998); Matter of Healy and Goodchild, 17 T&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 ofNg, 17 l&N Dec. 536, 537 (BIA 
1980). 
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application (Form DS-160) the Petitioner had submitted to the U.S. Department of State in January 
2015, on which he had provided information regarding the salary he received from his former Chinese 
employer. 
The record reflects that the Petitioner's response to the NOID included a brief from former counsel, a 
29-page personal statement from the Petitioner addressing the issues raised by the Director; and 
additional evidence intended to rebut the Director's determination that he had misrepresented material 
facts relating to the evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(vi), (viii) and (ix). 
The Director did not address the NOID or the Petitioner's response but concluded that the Petitioner 
willfully misrepresented material facts. Further, the Director referenced a criterion not previously 
mentioned in the NOID. Specifically, the Director stated that "[b ]y claiming the [petitioner] held 
certain positions, original contributions of major sign[ficance, earned a certain salary and authored 
certain scholarly articles, the petitioner willfully made a false representation, and it is material to 
whether the beneficiary is eligible for the requested benefit." No further explanation is provided for 
the Director's conclusion that the Petitioner misrepresented material facts related to his original 
contributions under the criterion at 8 C.F.R. § 204.5(h)(3)(v). 
In addressing the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), the Director acknowledged that 
the Petitioner submitted a statement and additional evidence in response to the NOID. However, the 
decision does not discuss the contents of the Petitioner's detailed statement or the evidence he 
submitted to corroborate his statement. Counsel correctly asserts on appeal that "the denial did not 
provide any detailed analysis of Appellant's rebuttal arguments; the denial largely tracks the original 
language from the NOID." 2 
While the Director provided the Petitioner an opportunity to rebut derogatory information obtained 
from outside the record of proceeding in accordance with 8 C.F.R. § 103.2(b )(16)(i), the Director erred 
by failing to give due consideration to the evidence and arguments the Petitioner submitted in rebuttal 
to the NOID. Because the Director did not explain why this evidence was insufficient to overcome 
the derogatory information, the decision provides insufficient support for a finding of willful 
misrepresentation. When denying a petition, the Director must explain in writing the specific reasons 
for denial. 8 C.F.R. § 103.3(a)(l)(i). This explanation should be sufficient to allow the Petitioner a 
fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. 
See, e.g., Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the 
reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the 
determination on appeal). 
As written, the Director's denial notice did not explain why the Petitioner's rebuttal to the NOID was 
deficient and did not afford the Petitioner a reasonable opportunity to provide specific responses on 
appeal or motion to potentially overcome the Director's determination that he had willfully 
misrepresented facts that are material to his eligibility for the benefit sought. Accordingly, the 
2 In addition, counsel states that the Petitioner, through former counsel, provided "copious amounts of evidence and legal 
briefing on each of USCTS' s findings" in support of his motion to reopen and reconsider, emphasizing that the decision 
dismissing the motion similarly "contained no substantive discussion on why the Appellant's rebuttal evidence 
insufficiently addressed USCIS' s concerns." 
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Director's decisions denying the underlying petition and subsequent motion are withdrawn and the 
matter will be remanded to the Director for farther consideration and issuance of a new decision with 
respect to the underlying petition. 
In that new decision, the Director must consider and address the evidence submitted in rebuttal to the 
NOID. The Director should also consider the evidence and arguments submitted in support of the 
Petitioner's motion and appeal and may request any additional evidence considered pertinent to the 
new willful misrepresentation determination and any other issue. Finally, the Director must inform 
the Petitioner and allow him an opportunity for a rebuttal if the decision will be based on any 
derogatory information from outside the record of proceedings that has not yet been disclosed to him. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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