dismissed EB-1C Case: Automotive Parts Export

(b)(6)
DATE: 
NAY 0 6 2015 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
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.P.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
T� 
�Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter 
is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation engaged in the export of automobile, truck, and heavy 
machinery parts to Latin America. It seeks to employ the beneficiary in the United States as its 
general manager. Accordingly, the petitioner filed a Form 1-140, Immigrant Petition for Alien 
Worker, to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)( 1)(C), as a 
multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish: (1) the petitioner 
has a qualifying relationship with the foreign employer abroad; (2) the beneficiary was employed 
abroad in a qualifying managerial or executive capacity; and (3) the beneficiary would be employed 
in the United States in a qualifying managerial or executive capacity. The director further found that 
the petitioner willfully misrepresented information regarding the beneficiary's intended employment 
which is material to his eligibility for the benefit sought. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to us for review. On appeal, the petitioner submits a brief disputing the 
director's adverse findings. 
I. THE LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
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Additionally, the regulations at 8 C.P.R. § 204.5G)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. THE ISSUES ON APPEAL 
A. Qualifying Relationship 
The first issue is whether the petitioner established that it has a qualifying relationship with 
located in Venezuela. The petitioner indicates that the beneficiary worked 
for this foreign entity from 2006 until 2009. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a 
U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." 
The regulation at 8 C.P.R. § 204.50)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each indivi dual owning and controlling approximately the same 
share or proportion of each entity; 
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* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
1. Facts 
The petitioner filed the Fonn I-140 on March 3, 2010. The petitioner asserts that 
owns 51% of its stock thus creating a qualifying relationship between the two 
companies. The petitioner provided stock certificate number 1, dated April 19, 2001, issuing "51%" 
of its capital stock to the foreign entity. 
The petitioner also submitted copies of its IRS Forms 1120, U.S. Corporation Income Tax Return, 
for the 2207 and 2008 tax years. In 2007, the petitioner stated at Form 1120, Schedule K that 51% 
of the company was owned by a "foreign person" from Venezuela; however, the petitioner did not 
include the Form 5472, Information Return of a 25% Foreign-Owned U.S. Corporation or Foreign 
Corporation Engaged in a U.S. Trade or Business or otherwise identify the foreign owner. On the 
Form 1120 for 2008, the petitioner indicated at Schedule E that ' owned 100% of 
the petitioner's stock and the petitioner checked "no" on Schedule K indicating that a foreign 
company did not directly own 20% or more or indirectly own 50% or more of the voting power of 
the company. 
On April 24, 2014 the director issued a Notice of Intent to Deny (NOID) the petition. The director 
stated that the petitioner had not established a qualifying relationship with the foreign entity and 
instructed the petitioner to provide additional evidence demonstrating its ownership and control such 
as copies of all issued stock certificates, a corporate stock certificate ledger, corporate bylaws, 
relevant minutes of shareholder meetings, and any relevant shareholder agreements. In addition, the 
director instructed the petitioner to resolve the discrepancies created by its submission of tax 
documentation indicating company ownership that is inconsistent with the petitioner's claim. 
In response to the director's request, the petitioner submitted two additional stock certificates issued 
on April 19, 2001. Stock certificate no. 2 certifies issuance of 25% of the company shares to 
and stock certificate no. 3 certifies issuance of 24% of the company shares to 
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The petitioner also provided its copies of its IRS Form 1120 for tax years 2010, 2011 and 2012. In 
2010, the petitioner's Schedule E, Compensation of Of ficers, indicated that 
_ 
owned 49% of the petitioner's shares; Schedule K reflected 49% of the company held by 
Venezuelan owners, and Schedule G, Information on Certain Persons Ow ning the Corporation's 
Voting Stock, indicated that the foreign entity owned 51% of the stock, owned 
24%, and owned 25%. This basic ownership information was reported on the 
petitione r's tax returns for 2011 and 2012.1 
The petitioner acknowledged ownership inconsistencies represented in its tax documentation and 
claimed that "the company's accmmtant made a clerical error on the tax return. " The petitioner 
further asserted that the errors made in its tax returns do not impact its ownership structure since it 
has already "conclusively demonstrated" it's ownership by presentation of its stock certificates. 
The director found that the petitioner had not established that it had a qualifying relationship with the 
foreign entity since the petitioner had not resolved discrepancies and did not provide requested 
inforn 1ation. 
On appeal the petitioner asserts that the director erred in finding that the evidence already provided 
was insufficient to establish a qualifying relationship in this matter. The petitioner reiterates that the 
stock certificates conclusively establish that the petitioner is a subsidiary of the foreign entity which 
owns 51% of the petitioner's stock. 
2. Analysis 
Upon review, the pet1t10ner has not established that it has a qualifying relationship with the 
beneficiary's last foreign employer. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa 
petition, ownership refers to the direct or indirect legal right of possession of the assets of an entity 
with full power and authority to cont rol; control means the direct or indirect legal right and authority 
to direct the establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
1 The director's decision included a detailed discussion of the inconsistencies found in the petitioner's tax 
returns which will not be repeated here. 
(b)(6)
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total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter 
of Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Without full disclosure of all relevant 
documents, USCIS is unable to determine the elements of ownership and control. 
Here, the petitioner's stock certificates served as ownership evidence as of the year 2001 but the 
·petitioner's more recent tax documentation indicates that there may have been changes in the 
petitioner's stock ownership. For example, in 2008 it appears that held 100% of 
the petitioner's stock but in 2010, 2011 and 2012 he owned either 49% or 24% depending on the 
document consulted. However, the petitioner has submitted copies of only three stock certificates, 
all issued in 2001, and has not acknowledged any subsequent changes in ownership. The director 
specifically reques�ed documentation to clarify stock ownership such as a stock registry, ledger, or 
meetings minutes but the petitioner did not comply with this request. Therefore, even if the 
petitioner had provided no conflicting evidence related to the stock holdings in this matter, its failure 
to submit requested evidence precludes a material line of inquiry and shall be grounds for denying 
the petition. 8 C.P.R. § 103.2(b)(14). 
In response to the director's request for evidence to resolve the tax return inconsistencies, the 
petitioner merely stated that its accountant made clerical errors. We note that the entries made on 
the tax forms were prepared and provided by the petitioner, included conflicting shareholder 
information on more than one tax return over the course of several years. The assertion that the 
errors were merely clerical is inadequate and fails to resolve or establish the majority shareholder of 
the petitioner's shares at the time this petition was filed. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain 
or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal, the petitioner once again acknowledges several "clerical errors" in its own documentation 
but it maintains that it has sufficiently demonstrated that it is a subsidiary of the foreign entity. The 
petitioner relies on the stock certificates issued in 2001 to demonstrate its claimed ownership but 
does not further discuss its own con flicting tax documentation that it created well after those initial 
stock certificates were issued. The petitioner is obligated to clarify the inconsistencies in the record 
by independent and objective evidence. /d. Simply asserting that the reported shareholder 
information in the tax returns was made as a result of a clerical error does not qualify as independent 
and objective evidence. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
For the foregoing reasons, the petitioner failed to establish that it has a qualifying relationship with 
the foreign entity. Accordingly, the appeal will be dismissed. 
(b)(6)
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B. Employment Abroad in a Managerial or Executive Capacity 
The second issue is whether the petitioner established that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) 
(ii) 
(iii) 
(iv) 
manages the organization, or a department, subdivision, function, or 
component of the organization; 
supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(b)(6)
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(iv) receives only general supervisiOn or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, US CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) of the Act. 
1. Facts 
The petitioner provided a letter dated September 30, 2009 in support of this petition stating that the 
beneficiary was employed with the foreign entity as general manager since March 7, 2006. The 
petitioner stated that the foreign entity was engaged in the purchase and sale of car glass and that the 
company employed 32 individuals. The petitioner claimed that while employed abroad, the 
beneficiary was responsible for supervising marketing representatives, preparing payroll, making 
payments, and guiding marketing representatives through marketing processes and techniques. The 
petitioner also provided a letter from the foreign entity dated September 30, 2009 which reiterated 
this same brief description of the beneficiary's duties. 
The petitioner provided the foreign entity's organizational chart depicting a total of over 30 
employees. However, the .chart, dated April 2009, post-dates the beneficiary's transfer to the United 
States in 2008 and is not accompanied by an English translation. The petitioner also provided the 
foreign entity's monthly payroll reports for 2008, but these documents were also not accompanied by 
an English translation. 
The petitioner provided a two page unsigned, undated document that included short duty 
descriptions for the positions of general manager, purchasing manager, whole sales manager, retail 
sales manager, and administration for the foreign entity. The general manager's description was 
described as follows: 
1. Hire all the management positions; 
2. Conduct periodic evaluations of the performance of the functions of the various 
departments 
3. Plan and develop goals in the short and long term along with annual projections 
and deliver these goals for the approval of corporate managers; 
4. Coordinate with the administrative office to ensure that records and analyses are 
being carried properly; 
5. Create and maintain good relations with customers, suppliers and corporate 
managers to maintain the smooth running of the company. 
The director observed that the petitioner provided the foreign entit y' s untranslated organizational 
chart and did not provide a letter from the foreign entity with detailed information regarding the 
beneficiary's employment abroad. The director issued a NOID instructing the petitioner to provide a 
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letter from the foreign entity detailing the beneficiary's duties, the percentage of time the beneficiary 
spent on each duty, and a properly translated and detailed mganizational chart. 
In response to the director's RFE, the petitioner did not include any additional information but 
instead stated "with respect to the beneficiary's previous duties as General Manager with the parent 
company in Venezuela, the previous submission is incorporated by reference." 
The director denied the petition, in part, finding that the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. In denying the 
petition, the director emphasized that the petitioner did not provide the requested translation of the 
foreign entity's organizational chart or the requested detailed letter from the foreign entity describing 
the beneficiary's expeiience abroad. 
On appeal, the petitioner disagrees with the director's finding and requests that we review the 
entirety of the record and "objectively assess the evidence present ed." 
2. Analysis 
Upon review, the petitioner has not established that it the beneficiary was employed with the foreign 
entity in a qualifying managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). A detailed job description is 
crucial, as the duties themselves will reveal the true nature of the beneficiary's foreign and proposed 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 (2d. Cir. 1990). We will then consider this information in light of other relevant factors, 
including job descriptions of the beneficiary's subordinate employees, the nature of the business that 
is conducted, the foreign company's subordinate staff, and any other facts contributing to a 
comprehensive understanding of the beneficiary's actual role within the foreign entity. 
In this matter, the evidence does not support a finding that the beneficiary was employed in a 
qualifying managerial or executive capacity. The petitioner provided a vague and nonspecific 
description of the beneficiary's duties with the foreign company that failed to demonstrate what the 
beneficiary did on a day-to-day basis. For example, the petitioner's assertion that the beneficiary 
coordinated with the administrative office to ensure records and analyses were being properly 
carried out provides no insight into the actual tasks the beneficiary actually performed. The 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course 
of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). Furthermore, the petitioner's description did not include the percentage of time spent on any 
particular tasks in order to demonst rate that the beneficiary had been engaged in primarily executive 
or managerial instead of non-qualifying duties. Notably, the director's NOID instructed the 
petitioner to provide this additional evidence but the petitioner did not comply. Failure to submit 
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requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion of the 
beneficiary's duties would be managerial and what proportion would be non-managerial. The 
petitioner provided a short list of the beneficiary's duties that included both managerial and 
administrative or operational tasks, but failed to quantify the amount of time the beneficiary 
allocated to each of them. This failure of documentation is important because several of the 
beneficiary's daily tasks, such as conducting periodic performance evaluations, coordinating with 
the administrative office to ensure proper handling of records, and preparing payroll do not fall 
directly under traditional managerial duties as defined in the statute. Therefore, we are unable to 
determine whether the beneficiary was primarily engaged in qualifying or non-qualifying duties. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm'r 1988). 
In addition, according to the brief description of the beneficiary's duties provided by the foreign 
entity, the beneficiary oversaw "different marketing representatives" and "guided marketing reps." 
However no marketing positions are included in the list of defined duty positions provided by the 
petitioner. Thus, there appears to be an unresolved discrepancy between the beneficiary's duty 
description and the subordinate employee positions he oversees. It is incumbent upon the petitioner 
to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Beyond the beneficiary's required duty description, we review the totality of the record when 
examining the claimed managerial capacity of a beneficiary, including the company's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to 
relieve the beneficiary from performing operational duties, and the nature of the business. Here, in 
addition to providing a vague description of the beneficiary's duties, the petitioner failed to provide 
sufficient documentation to demonstrate the foreign entity's organizational structure. We observe 
that the petitioner submitted evidence including a two page English document purporting to be a 
translation of one of the foreign entity's documents but there is no accompanying certification of 
translation. Because the petitioner failed to submit certified translation of the document the evidence 
is not probative and was not given any weight in this proceeding. Therefore, we could not determine 
whether the evidence supported the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). This is also 
true regarding the foreign entity's organizational chart which was provided without any purported 
translation at all, and which also post-dated the beneficiary's transfer to the United States. 
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A review of the petitioner's evidence provides us little insight into nature of the beneficiary's duties 
or the actual structure of the foreign entity at the time the beneficiary was employed. Accordingly, 
due to the lack of probative evidence in the record, the petitioner has not established that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. For this 
additional reason, the appeal will be dismissed. 
C. U.S. Employment in a Managerial or Executive Capacity 
The third issue is whether the petitioner established that it will employ the beneficiary in a qualifying 
managerial or executive capacity. 
1. Facts 
The petitioner claims to be engaged in the export, import, marketing and distribution of car glass 
from Venezuela to the United States. The petitioner stated on its Form 1-140 that the beneficiary's 
duties include: "Develop and implement strategic plans of work to sale company products. 
Valuation and legal consulting. Provide financial and legal consulting to the CEO and the board of 
directors." 
The petitioner provided a letter of support dated September 30, 2009 stating that the beneficiary "has 
played a key role in the operation of the company." The petitioner states that the beneficiary "has 
been and will continue to be in control of all sales and import and export department and for 
managing and overseeing the company's day-to-day operations (financial investments, human 
resources, and the assets to the company)." Th� petitioner's letter further described the beneficiary's 
proposed duties as follows: 
He coordinates functions and sales operations between the foreign company and the 
US affiliate, directing all marketing sales and fiscal policies. He supervises the 
compilation of financial data and the reporting of it. 
[The beneficiary] works 40 hours a week and the percentage of time spent on each 
duty are equitably in equal proportion or average because all of them are very 
important. 
It is important to stand out that [the beneficiary] has an excellent experience and skills 
as the following ones: 
His responsibilities include but are not limited to: 
1.1. Establish new contacts, and new products. 
1.2. The information flow is canalized [sic] and development of the petitions of 
their clients (proposals, invoices, brokers) 
1.3. The necessity is generated in the projects and the information it's canalized 
[sic] to the members of the development team. 
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1.4. The intern & extern communications is generated in conjunction with the 
communications department to present the company 
1.5. The business plans are present 
2.1. Supervise the purchase and sales department, and the import and exports. 
2.2. The proposal information is transfer to the administration to perform the 
transfer to the client. 
2.3. Cost analysis, search new products, Proposal follow up, 
2.4. Cost negotiation and times of giving the client 
2.5. Satisfaction follow up of the project, both of the products and the client 
2.6. Generate more necessity base on the projects provided in teams with 
department that developed the project 
3.1. Lifting of intern politics to satisfy human, technologic (equipment) necessities 
and human resources 
3.2. Administrate all the company's resources 
3.3. Invoice Control 
3.4. Incentives and educate all the managers in the plan managing of the business 
3.5. Manage bank accounts, cash in register, accounts payable, receivable 
4.1. Follow up of the financial process of execution through the brokers. 
4.2. Coordinate with the managers the pending export. 
The petitioner's Form I-140 indicated that it employed seven individuals at the time of filing. The 
petitioner's letter asserts that it currently employs six but intends to hire two more employees in the 
future. 
The petitioner submitted a document entitled "organizational chart" that identifies six employees and 
provides each employee's title, educational qualifications, duty description and functions. The 
beneficiary's functions and description included on this document are as follows: 
Functions: 
1. Develop and implement strategic plans of work to sale company products. 
2. Valuation and legal consulting. Provide financial and legal consulting to the CEO 
and the board of directors. 
3. Direct the organization's financial goals, objectives, and budgets 
4. Plan investment of funds and manage associated risks, supervises cash 
management activities, execute capital-raising strategies to support the firm's 
expansion. 
5. Appoint and supervise the professional staff. 
6. Analyze of future earnings or expenses and supervise cash management activities. 
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The General Manager spends 100% of his time in qualifying managerial functions. 
The General Manager has full discretionary authority in the day-to-day operations if 
needed although most of the day-to-day duties have been delegated as per the US 
organizational chart and job descriptions. 
The petitioner's undated organizational chart depicts as president overseeing an 
assistant, The beneficiary is depicted as the general manager direct! y 
overseeing (marketing department) and (international 
sales) who, in turn, oversees sales representative, The petitioner stated that the 
marketing employee has a bachelor's degree in marketing and is responsible for three functions: (1) 
develop marketing strategies and support of all the product lines; (2) participate in the creation of the 
web page, brochures, sales aids and ads; and (3) responsible for product launching, packaging, and 
commercialization. The petitioner stated that the international sales employee has an associate's 
degree and performs three functions: (1) develop Colombian market; (2) design marketing and sales 
strategies for Venezuelan market; and (3) development of seminars where he explains the 
benefits and usages of our products. Finally, the petitioner indicated that the sales representative is 
responsible for directing customer service, developing new customer development, creating reports 
on product demand and training and presentation of new products. 
The petitioner provided state quarterly wage reports and IRS Forms 941, Employer's Quarterly 
Federal Tax Return, for all four quarters of 2009 showing wages paid to the employees included in 
the organizational chart. It also provided its payroll report for January 2010, which does not include 
wages paid to but does include another individual, who was not 
listed on the organizational chart. 
In the NOID, the director advised the petitioner of potentially derogatory information obtained from 
outside the record, in accordance with 8 C.F.R. § 103.2(b )(16)(i). First, the director advised the 
petitioner that the beneficiary had provided a sworn statement to U.S. Customs and Border 
Protection on August 4, 2012 in which he stated that he has two employees under his supervision 
and performs duties such as verifying automobile glass for the export market, as well as "do 
materials for installation and accessories." The director found these statements to be indicative of an 
employee who performs the tasks necessary to provide the petitioner's services. 
In addition, the director advised the petitioner that he reviewed the Form I-140 filed on behalf of its 
president, which was approved on December 31, 2009. The director observed that 
the petitioner provided a nearly identical job description for its president as it did for the 
beneficiary's position of general manager, and questioned why it would require both employees to 
perform the same managerial or executive duties. As such, the director found that the petitioner may 
have misrepresented the nature of the beneficiary's tasks in order to obtain the immigration benefit 
sought. 
Finally, the director noted that one of the duty descriptions submitted for the beneficiary referred to 
his interaction with "the communications department," and emphasized that the petitioner did not 
include this department on its organizational chart. 
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The director's NOID instructed the petitioner to provide the beneficiary's detailed duty description 
along with the percentage of time he spenos performing each specific task, as well as a detailed 
organizational chart. The director advised the petitioner that its response must resolve the 
discrepancies noted in the NOID, and must include corroborating evidence in support of the 
petitioner's assertions. 
The petitioner responded to. the NOID with a letter dated May 23, 2014 asserting that the beneficiary 
oversees import, export, and communications but the company does not have separate departments 
for those activities. 
The petitioner provided the following, additional duty description for the beneficiary: 
Ov erall responsibility for formulating and implementing long and short term business 
objectives geared towards maximizing profit and operational excellence (20% ): 
investigating investment opportunities for the purpose of investing capital to expand 
business operations (10%-15%); overseeing and directing our company's operational 
processes and systems which are carried out on a day-to-day basis by subordinate 
personnel (20%-25% ); recommending and overseeing the implementation of changes 
to optimize efficiency and considering solutions or alternate methods to streamline 
operations and maximize profits (10%-15%); establishing goals and policies and 
executing operational strategies that include cost analysis as well as reviewing and 
analyzing our competitors' pricing data (15% -20%); negotiating proposals and 
contracts, setting sales goals, and overseeing proper implementation of company 
policies and goals through subordinate personnel (15% -20%); coordinating and 
conferring with Vice President regarding marketing plans and sales strategies (5%). 
The petitioner submitted a second, undated, organizational chart depicting the following 
organizational structure: as president directly overseeing both vice president 
and the beneficiary as general manager. The vice president and the beneficiary are both 
depicted as overseeing "marketing manager" The beneficiary is depicted as 
directly overseeing a sales representative, and a secretary/administrator, 
The petitioner provided a document with duty descriptions for each employee depicted on the 
organizational chart. This document also stated that the marketing manager has an "advanced 
technical diploma" and the sales representative has an associate degree in arts. 
The petitioner submitted a copy of its State of Florida Department of Revenue Form UCT -6 
Quarterly for the first quarter of 2010, covering the period during which this petition was filed. The 
form lists seven employees, including: (1) the beneficiary; (2) (3) 
(4) (5),. . (6) : and (7) 
The petitioner reported no wages paid to during this quarter. The Form UCT-
(b)(6)
Page 15 
6 also shows wages paid to 
provided. 
NON-PRECEDENT DECISION 
whose position whose position title has not been 
The petitioner also provided copies of more recent Forms UCT-6, which indicate that the petitioner 
employed only four employees in 2013, including the beneficiary, the president, and 
first quarter of 2014. 
The evidence reflects that were hired during the 
The petitioner also responded to the derogatory information discussed in the NOID. With respect to 
the beneficiary's interview with a Customs and Border Protection agent at the International 
Airport, the petitioner emphasized that the statement from the beneficiary quoted in the NOID was 
not a verbatim transcript of the interview, which was conducted entirely in Spanish. The petitioner 
emphasizes that the beneficiary did in fact corroborate his employment as the petitioner's general 
manager, and that he generally described the nature of the activities performed by the company 
rather than his day-to-day duties, as he does not directly export glass or install materials. 
Further, with respect to the director's finding that the petitioner submitted essentially the same 
description of duties for two different positions in support of two different Form I-140s, the 
petitioner explained that the beneficiary was performing many of the president's duties when this 
petition was filed because in 2010, the petitioner's president, was spending a 
significant amount of time in Panama heading a related company, The 
petitioner provided evidence related to in support of these assertions. 
The director denied the petition, in part, finding that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. The director noted that the beneficiary's duties were not adequately detailed and the record 
contained unresolved inconsistencies. The director also concluded that the petitioner misrepresented 
information regarding the beneficiary's proposed employment which is material to his eligibility for 
the benefit sought. 
On appeal, the petitioner asserts that the director erred in determining that the beneficiary will not be 
employed in a qualifying managerial capacity. The petitioner asserts that the beneficiary oversees 
professionals. Alternatively, the petitioner asserts that the beneficiary qualifies as a functional 
manager of essential functions such as "overseeing daily operations including international trade of 
products, process improvement, sales, financial and personnel matters." Further, the petitioner states 
that the beneficiary's subordinate staff "performs the overwhelming majority of the non-managerial 
tasks associated with the function he manages." 
2. Analysis 
Upon review of the totality of this record, we find the evidence does not support a finding that the 
beneficiary would be employed in a qualifying managerial or executive capacity. The director's 
finding that the petitioner willfully misrepresented facts material to the beneficiary's proposed 
employment will be discussed in a separate section below. 
(b)(6)
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Page 16 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary's proposed job duties. See 
8 C.F.R. § 204.50) (5). A detailed job description is crucial, as the duties themselves will reveal the 
true nature of the beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). We will then consider this 
information in light of other relevan:t factors, including job descriptions of the beneficiary's 
subordinate employees, the nature of the business that is conducted, the petitioner's subordinate 
staff, and any other facts contributing to a comprehensive understanding of the beneficiary's actual 
role within the petitioning entity. While an entity with a limited support staff will not be precluded 
from the immigration benefit sought herein, it is subject to the same burden of proof that applies to a 
larger entity with a moderate or large subordinate staff. In other words, regardless of an entity's size 
or support staff, the petitioning entity must be able to provide sufficient evidence showing that it has 
the capability of maintaining its daily operations such that the beneficiary would be relieved from 
having to primarily perform the operational tasks. 
The petitioner initially provided a broad description of the beneficiary's duties and included an 18 
point list of the beneficiary's responsibilities. A review of the responsibilities indicates that the 
beneficiary may devote a majority of his time to non-qualifying duties though the duties included in 
this list are not clear. For example, the beneficiary's stated responsibilities for managing financial 
accounts, cost analysis, administration of company resources, managing bank accounts and accounts 
payable and receivable, and invoice control are among those responsibilities that are non-qualifying. 
Furthermore, many of the remaining responsibilities are difficult to understand. In addition, some 
tasks are simply poorly articulated and thus do not convey any understanding of the beneficiary 
actual duties. In this regard, the petitioner stated that his responsibilities include "the information 
flow is canalized and development of the petitions of their clients (proposals, invoices, brokers)" and 
"generate more necessity base on the projects provided in teams with department that developed the 
project." Further, the petitioner indicated that the beneficiary will "supervise the purchase and sales 
department, and the import and exports," the petitioner did not clearly articulate that the beneficiary's 
subordinates performed duties associated with the company's purchasing, import or export functions, 
or that they relieve him from performing the non-qualifying banking and finance related duties noted 
above. 
In this matter, we are unable to determine what the beneficiary will do on a day-to-day basis and 
therefore we are unable to determine how much of the beneficiary's time will be spent engaged in 
qualifying duties. While no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental· to the proposed position. An employee who 
"primarily" performs the tasks necessary to produce a product or provide a service is not considered 
to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); see also Matter of Church Scientology International, 19 I & N Dec. 593, 604 (Comm. 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
In response to the director' s NOID, the petitioner submitted a new duty description for the 
beneficiary allocating a percentage of the benefic iary' s time into seven broad responsibilities such as 
overall responsibility for formulating long and short term business objectives, overseeing and 
directing operational processes and systems, establishing goals and policies and executing 
operational strategies, setting sales goals, and coordinating and conferring with the vice president on 
marketing plans and sales strategies. These responsibilities identify the beneficiary's overall 
objectives and general approach to reaching objectives but the petitioner provided no insight into 
how the beneficiary will spend his time on a day-to-day basis. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. In this description, the petitioner has failed to 
provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, this description is different from the petitioner 's previous descriptions of the beneficiary's 
duties and we cannot reconcile those differences without a more detailed duty description than the 
one provided in response to the NOID. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
We also note that the beneficia ry's initial duties were to include finance, import, export, and 
communications matters yet there appears to be no employees identified to perform the tasks related 
to those responsibilities; therefore no one who would relieve the beneficiary from primarily 
performing non-qualifying duties related to those responsibilities. The petition er' s new duty 
description does not reference the beneficiary's oversight of finance, personnel or import/export 
activities, all of which were initially attributed to the beneficiary. Further, the petitioner failed to 
explain who would perform those tasks other than the beneficiary. While performing non-qualifying 
tasks necessary to produce a product or service will not automatically disqualify the beneficiary as 
long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the burden 
of establishing that the beneficiary is "primarily" performing managerial or executive duties. 
Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns 
in part on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and a 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) 
and (ii). Personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that a "first line supervisor is not considered to be acting in 
a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees 
supervised are professional." Section 101(a)(44)(A) (iv) of the Act; 8 C.F.R. § 214.2(1)(1)(ii)(B)(2). 
If a beneficiary directly supervises other employees, the beneficiary must also have the authority to 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
hire and fire those employees, or recommend those actions, and take other personnel actions. 8 
C.F.R. § 214.2(1)(1)(ii)(B)( 3). 
On appeal, the petitioner claims that the beneficiary employs professional employees. The 
petitioner's initial organizational chart indicated that the beneficiary directly supervised marketing 
employee, and international sales manager, The petitioner 
also asserted that had a bachelor's degree and that had an associate's 
degree. However, the petitioner provided no documentation to support those claims and made no 
explicit claim that either employee required higher education credentials to perform their duties. On 
appeal, the petitioner asserts that even if its employees do not have a degree, the combination of their 
education, experience and skill qualifies them as professionals in their respective fields. 
In evaluating whether the beneficiary manages professional employees, we must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for ·entry into the field of 
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academies, or seminaries." The term "profession" 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by 
a prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endea vor. Matter of Sea, 19 I&N Dec. 817 
(Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 
(D.D. 1966). In this matter, the petitioner provided brief duty descriptions for the managers it 
claimed were professionals and failed to provide documentation that either had earned a college 
degree. Moreover, only one of the managers is alleged to have completed a four year bachelor's 
degree. Going on record without supporting documentary evidence is not suffi cient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 
1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Even if the petitioner had provided evidence sufficiently demonstrating that its employees had 
bachelor's degrees, we must focus on the level of education required by the position, rather than the 
degree held by subordinate employee. The possession of a bachelor's degree by a subordinate 
employee does not automatically lead to the conclusion that an employee is employed in a 
professional capacity as that term is defined above. In this matter, the petitioner has not established 
that a bachelor's degree is necessary to perform the marketing manager or sales manager duties. 
Further, the petitioner's latest organizational chart and accompanying employee list indicate that the 
beneficiary would not be supervising any employees who have completed a bachelor's degree or its 
equiv alent as of 2014. 
We acknowledge that the petitioner's original organizational chart depicts as the 
international sales manager's subordinate. However, despite this organizational chart, the 
international sales manager's duties do not include supervisory tasks and the petitioner has not 
established that : was employed as a supervisor or manager. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
We also acknowledge that the petitioner submitted an undated organizational chart in response to the 
director's NOID and the petitioner references that chart on appeal. This chart identifies the 
beneficiary as the direct supervisor of marketing manager, sales representative, 
and secretary/administrator, The petitioner asserts that the 
marketing manager has an advanced technical diploma and the sales representative has an associate's 
degree. Once again, the petitioner did not provide evidence of the educational credentials, claim that 
the employees have bachelor's or equivalent degrees, or claim that the educational credentials were 
required for the respective positions. Nevertheless, even if this documentation was sufficient it 
would not establish eligibility because the petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new set of facts. Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). As demonstrated in the 
record, both and were hired during the first quarter of 2014 and 
were not employed by the company at the time of filing. 
The term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead is primarily responsible for managing an "essential function" 
within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that 
clearly describes the duties to be performed in managing the essential function, i.e. identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion 
of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 
204.5(j)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the 
function. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. 
See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Boyang, Ltd. v. J.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comm'r 19 88)). 
On appeal, the petitioner asserts that, in the alternative, the beneficiary is primarily responsible for 
managing an essential function for the company. Specifically, the petitioner asserts that the 
beneficiary oversees its most essential functions such as overseeing daily operations including 
"international trade of products, process improvement, sales, financial and personnel matters." 
Nevertheless, the petitioner failed to provide sufficient evidence to demonstrate that the beneficiary 
had support to carry out the tasks relating to finance, international trade and personnel matters in 
order to relieve him from primarily performing those functions himself. The petitioner has not 
consistently articulated a claim that the beneficiary will manage an essential function, indicated the 
amount of time allocated to managing such function, or established that someone other than the 
beneficiary performs the non-qualifying duties associated with such function. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
manager or executive. See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is 
appropriate for users to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would 
perform the non-managerial or non-executive operations of the company, or a "shell company" that 
does not conduct business in a regular and continuo us manner. See, e.g. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The petitioner claims to engage in the purchase, import, export and sale of automobile glass, and 
asserts that the beneficiary is responsible for overseeing its day-to-day operations, including the 
company's sales, import and export, financial, and personnel matters. While the petitioner has 
established that it typically employs subordinate marketing and sales staff, the petitioner has not 
claimed to employ staff responsible for the day-to-day financial, purchasing and import and export 
matters that the beneficiary is claimed to oversee. Further, the petitioner's latest organizational chart 
indicates that the petitioner, as of 2014, employs a vice president who is senior to the beneficiary and 
also oversees sales and marketing, and that the beneficiary now has only one subordinate sales 
representative, as opposed to two sales employees at the time of filing. The petitioner has not 
established that it has a reasonable need for the beneficiary to perform primarily managerial or 
executive duties based on the nature of the business or its current stage of development. 
We have interpreted the statute to prohibit discrimination against small or medium-size businesses. 
However, we have consistently required the petitioner to establish that the beneficiary's position 
consists of "primarily" managerial and executive duties and that the petitioner has sufficient 
personnel to relieve the beneficiary from performing operational and administrative tasks. In this 
matter, the petitioner has not met that burden. 
Overall, the record is insufficient to establish that the beneficiary will be employed in a primarily 
managerial or executive capacity. 
D. Willful Misrepresentation of a Material Fact 
The final issue to be addressed is the director's finding that the petitioner willfully misrepresented 
information regarding the beneficiary's intended employment which is material to his eligibility for 
the benefit sought. 
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 out lined 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
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 (BIA 
1980). 
According! y, 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 (BIA 1961); 
Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
1. Facts 
As discussed above, the director reviewed a prior Form I-140 filed by the petitioner on behalf of the 
petitioner's president which was approved on December 31, 2009 1 • The director 
referred to a letter in that petition, dated September 30, 2009, in which the petitioner described the 
president's duties. The director advised the petitioner that the letter submitted in support of the 
president's petition contained "nearly identical" language as the letter submitted in support of the 
beneficiary's position as general manager in this matter. The director stated that the petitioner did 
not explain how its president and general manager can share autonomous control over all corporate 
matters in their purview and exercise wide latitude in discretionary decision-making in establishing 
the most advantageous courses of action for the successful management of the petitioner's activities. 
The director determined that this was an unresolved inconsistency. 
The director also advised the petitioner that the beneficiary, when interviewed by U.S. Customs and 
Border Protection in 2012, indicated that he performs duties suggesting his direct involvement in 
providing the petitioner's services. 
Therefore, when the director issued the NOID, he stated that it appeared that the petitioner 
misrepresented the beneficiary's intended employment with the petitioner, which is material to 
whether he is eligible for the requested benefit. Specifically, the director stated that the petitioner or 
the beneficiary made a false representation to an authorized official of the United States government 
when it filed its Form I-140 certifying under penalty of perjury that the evidence submitted was true 
and correct. The director stated that the willful misrepresentation occurred when the petitioner 
claimed that the beneficiary would be doing several of the same duties that the president was 
responsible for and that he would also perform non-q ualifying duties. The director indicated that the 
beneficiary made a sworn statement regarding these facts. 
The petitioner denied any misrepresentation. As noted, the petitioner explained that its president 
began working in Panama to expand the business and therefore, the beneficiary assumed many of his 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
responsibilities and duties in the United States in 2010. The petitioner asserted that there was no 
misrepresentation. The petitioner also emphasized that the beneficiary's interview with Customs and 
Border Protection was conducted in Spanish and that the information quoted in the director's NOID 
was not a verbatim transcript of his interview. The petitioner explains that his statements were 
intended to describe the company's activities rather than his day-to-day duties as general manager. 
The director acknowledged that the petitioner's legal representative attempted to explain the 
discrepancies discussed in the NOID. The director also acknowledged the legal representative's 
denial that that the beneficiary misrepresented his employment with the petitioner. However, the 
director determined that the petitioner itself did not submit any evidence to support the statements 
made by its own legal representative and that assertions made by a legal representatives do not 
constitute evidence. 
Therefore, the director made a finding of willful misrepresentation of a material fact and stated that 
it shall be considered in any future proceeding where admissibility is an issue. 
On appeal, the petitioner reiterates that neither it nor the beneficiary has made any 
misrepresentations and includes a discussion regarding the company, changes in personnel and 
structure. The petitioner acknowledged some discrepancies in the record but states that its 
explanations are logical and reasonable and were not intended to misrepresent eligibility. The 
petitioner also asserts that the beneficiary should not be penali zed by a finding of misrepresentation 
in this matter because the beneficiary did not file this petition. 
2. Analysis 
Upon review, we find that the petitioner's assertions are persuasive. Accordingly, we will withdraw 
the director's finding of willful misrepresentation of a material fact. 
The term "willfully" in the statute has been interpreted to mean "knowingly and intentionally," as 
distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See 
Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979) ("knowledge of the falsity of the 
representation" is sufficient); Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995) (interpreting 
"willfully" to mean "deliberate and voluntary"). In this matter, the petitioner asserts that there was 
no willful misrepresentation. The petitioner offers a reasonable explanation for the discrepancies 
found by the director. The director did not consider the petitioner's explanation because it was 
submit ted by the petitioner's legal representative and not the petitioner itself. We will consider 
statements made by the petitioner's legal representative, on the petitioner's behalf and in furtherance 
of their petition. Further, the petitioner did submit supporting evidence regarding the company 
president's responsibilities in Panama in support of its assertion that the beneficiary assumed some of 
this employee's responsibilities in 2010. In addition, the record supp orts the petitioner's assertion 
that the beneficiary's interview with Customs and Border Protection was conducted in Spanish, and 
that no verbatim transcript of that interview has been incorporated into the record or provided to the 
petitioner for review. 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
While there are some inconsistencies in the record, the director's primary concerns regarding the 
petitione r's misrepresentation of material information have been resolved. A few errors or minor 
discrepancies are not reason to question the credibility of an alien or · an employer seeking 
immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 694 (9th Cir., 2003). 
Accordingly, we will withdraw the director's finding that the petitioner willfully misrepresented facts 
material to the beneficiary's eligibility for the benefit sought. 
III. CONCLUS ION 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden. 
ORDER: · The appeal is dismissed. The director's finding of willful misrepresentation of a 
material fact is withdrawn.