dismissed EB-1C Case: Business Management

(b)(6)
DATE: APR 2 It 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: 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 
FILE: 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case .. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
l~ A Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, Texas Service Center revoked the approval of the preference visa petition after 
issuing a notice of his intention to revoke the approval and his reasons therefore.
1 
The Administrative 
Appeals Office (AAO) dismissed the petitioner's appeal of the revocation decision as well as its subsequent 
motion to reconsider. The matter is now before the AAO on a second motion to reconsider? The AAO will 
grant the motion for the purpose of addressing the director's prior finding of fraud. However, the AAO's 
underlying decision dismissing the appeal will be affirmed. 
The petitioner is a Texas corporation which claimed five employees at the time of filing the petition and seeks 
to employ the beneficiary as its executive vice president. Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. In a decision 
dated June 25, 2010, the director revoked the approval of the petition with a finding of fraud. The director 
determined that the petitioner failed to provide sufficient probative and reliable evidence to establish that it 
has a qualifying relationship with the beneficiary's claimed foreign employer. 
On appeal, counsel challenged the director's reliance on adverse evidence that pertained to the petitioner's 
prior counsel and his criminal fraud-based conviction. 
After conducting 1a de novo review of the record, the AAO concluded that the petitioner failed to overcome 
the director's findings of ineligibility. Specifically, the AAO determined that the record lacked sufficient 
credible probative evidence establishing that the petitioner has a qualifying relationship with the foreign entity 
where the beneficiary is claimed to have been employed. The AAO found that the petitioner failed to resolve 
certain evidentiary inconsistencies that exist among the documents that were provided to establish the foreign 
entity 's ownership of the U.S. petitioner. The record shows that the AAO neither upheld nor withdrew the 
director's prior finding of fraud. 
The petitioner subsequently filed a motion to reconsider, in which it challenged the director's finding of fraud 
and sought to invoke the protections under the American Competitiveness in the Twenty-First Century Act of 
2000 (AC21), despite the fact that the approval of the petitioner's Form I-140 was revoked thus indicating that the 
petition was no longer valid. 
The AAO dismissed the petitioner's motion, concluding that the petitioner failed to meet the requirements of a 
motion to reconsider. The AAO found that counsel failed to cite pertinent precedent case law addressing the 
1 Among other issues, the director observed in the notice that the petitioner's previous counsel, 
had been convicted of immigration fraud in 2009. Specifically, on August 24, 2009, a judgment in a 
criminal case was entered in the U.S. District Court for the Southern District of Texas, Houston Division, 
after Mr. pleaded guilty to conspiracy to engage in visa fraud, encouraging and inducing aliens for the 
purpose of commercial advantage and private financial gain to come to the United States , making false 
statements, 
and money laundering . 
2 Although the petitioner marked Box A, which applies to the filing of an appeal with attached supporting 
evidence, the petitioner's supporting statement, titled "Brief in Support of I-290B Motion to Reopen and 
Reconsider, " indicates that the petitioner 
intended to file a motion rather than a second appeal. As such, the 
petitioner's Form I-290B will be treated as a motion rather than a second appeal, which the AAO does not 
have jurisdiction to consider. 
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AAO's conclusion that the petitioner failed to overcome inconsistencies in documents that were offered to 
establish the existence of a qualifying relationship between the petitioner and the foreign entity where the 
beneficiary was purportedly employed. Again, the AAO neither upheld nor withdrew the director's prior 
finding of fraud. 
In support of the petitioner's current motion, counsel submits a brief titled, "Brief in Support of I-290B 
Motion to Reopen and Reconsider," asserting that the petitioner was not among the list of companies for 
whom the petitioner's prior counsel filed fraudulent petitions. Counsel further contends that the AAO 
essentially precluded the petitioner from submitting evidence that would resolve the various inconsistencies 
discussed in the director's decision. 
Although the petitioner's motion will be granted, counsel's assertions are not supported by the evidence of 
record. The very purpose of the AAO 's role in the appeal process is to review the matter before it on a de 
novo basis. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). In other 
words, the AAO will consider on appeal any new evidence a petitioner submits to address deficiencies and/or 
issues pertaining to the petitioner's eligibility. In general, the only exception from the de novo review is 
evidence that the petitioner submits on appeal for the first time after having failed to such evidence in 
compliance with a prior request for evidence. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
In the present matter, counsel does not explain what evidence he sought to submit on appeal, but was 
precluded from doing so based on the AAO's alleged refusal to consider such evidence. Therefore we cannot 
address counsel's general allegation of error. Furthermore, the unsupported statements of counsel on appeal 
or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 
464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Even if, 
arguendo, counsel's contention was meant to be applied to new evidence the petitioner sought to submit on 
motion, the AAO notes that the motion to reopen, rather than a motion to reconsider, is the proper vehicle to 
submit any new evidence. The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that a motion to 
reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or 
other documentary evidence. Further, the new facts must possess such significance that, "if proceedings . .. 
were reopened, with all the attendant delays, the new evidence offered would likely change the result in the 
case." Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 
1239-40 (lOth Cir. 2013). 
The record in the matter at hand shows that the petitioner checked Box E when filing the prior Form I-290B, 
thus indicating its intent to file a motion to reconsider. As such, the AAO had no reason to look for or 
consider new evidence in support of the previously dismissed motion. Furthermore, while counsel's brief 
indicates that the petitioner has filed a combined motion to reopen and reconsider, the record does not indicate 
that any new evidence has been submitted to meet the requirements of 8 C.F.R. § 103.5(a)(2). 
Next, counsel focuses on the fraud finding that the director originally issued in the revocation decision dated 
June 25, 2010. Counsel asserts that the petitioner lacked the element of intent, which is necessary for a 
finding of fraud. 
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In line with counsel's assertion, it is well established in published case law that a finding of fraud requires a 
determination that the alien made a false representation of a material fact with knowledge of its falsity and 
with the intent to deceive 'an immigration officer. Furthermore, the false representation must have been 
believed and acted upon by the officer. See Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). In reviewing the 
facts presented in the matter at hand, the record does not support a finding of fraud. As previously noted in 
the AAO 's original decision dated August 14, 2012, the criminal conviction of the petitioner 's prior counsel , 
by itself, is not sufficient to invalidate the petitioner's assertions of fact, despite any suspicions that may have 
arisen due to prior counsel's criminal wrong-doing. Therefore, the director's finding of fraud will be 
withdrawn. 
The above discussion notwithstanding, the record nevertheless contains considerable inconsistencies as to 
who owns the petitioning entity. While the petitioner has consistently maintained that the foreign entity owns 
the majority of the petitioning entity, thus indicating that the petitioner is a subsidiary of the entity abroad, the 
matter of the petitioner's credibility still remains in question given the petitioner's failure to provide evidence 
to resolve the documentary anomalies and the inconsistent evidence of its ownership. 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). 
Despite counsel's continued assertions that U.S. Citizenship and Immigration Services (USCIS) acted unfairly 
by revoking approval that was issued years ago, the law with respect to revocations is clear. Generally, with 
regard to revocations, section 205 of the Act, 8 U.S.C. § 1155, states: "The Attorney General 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 , 191&N 450 (BIA 1987)). 
The record in the present case shows that USCIS properly informed the petitioner of certain anomalies that 
existed in the evidence that submitted to establish the existence of a qualifying relationship. The petitioner 
was then given the opportunity to address and rebut the adverse findings introduced in the notice of intent to 
revoke. The record shows that the petitioner has not, in fact, provided independent objective evidence 
resolving how many shares of stock the petitioner issued, who owns the petitioning entity's stock, and what , if 
any, was the compensation the petitioner allegedly received for the issuance of stock. Counsel 's attempt to 
(b)(6)
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reconcile the previously noted inconsistencies by claiming that the errors described herein were merely 
clerical is not sufficient, as any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. !d. at 591-92. As noted 
earlier, the unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 188-89 n.6. 
In summary, while the AAO withdraws the director's finding of fraud and makes no independent finding of 
willful misrepresentation, the record shows that the petitioner has failed to overcome adverse findings that 
pertain to the petitioner's ownership. As such, the AAO finds that the petitioner has failed to provide 
sufficient credible evidence to establish the existence of a qualifying relationship with the beneficiary's 
foreign employer and is therefore ineligible for the immigrant visa sought herein. 
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. Here, the petitioner has not sustained that burden. 
ORDER: The AAO's previous decisions are affirmed. The approval of the petition 
remains revoked. 
FURTHER ORDER: The director's finding of fraud made on June 25, 2010 is withdrawn.