dismissed EB-1C Case: Business Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 17863436 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 29, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a company engaged in a variety of services, including communications, vending, and the 
operation of spas, salons, and boutiques, seeks to permanently employ the Beneficiary as its 
"President/Director" under the first preference immigrant classification for multinational executives 
or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ 1153(b)(l)(C). 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding the 
Petitioner did not establish that: (1) it was doing business in the United States as defined by the 
regulations; (2) the Beneficiary would be employed in the United States in a managerial or executive 
capacity; (3) the Beneficiary was employed abroad in a managerial or executive capacity; (4) it had a 
qualifying relationship with the Beneficiary's foreign employer; and (5) it had the ability to pay the 
Beneficiary's proffered wage. The Director also entered a separate finding of willful 
misrepresentation of a material fact against both the Petitioner and the Beneficiary. 1 The Petitioner 
later filed an appeal that we dismissed. The matter is before us again on a motion to reopen and a 
motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
1 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. 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
II. BENEFICIARY'S ELIGIBILITY FOR THE BENEFIT SOUGHT 
In denying the appeal, we concluded the Petitioner did not demonstrate that it was doing business as 
defined by the regulations for at least one year prior to the date the petition was filed. 2 In making this 
conclusion, we emphasized that the Petitioner did not submit evidence to substantiate its regular 
provision of goods and services for one year prior to the date the petition as filed. We also noted that 
submitted evidence of business operations by an asserted affiliated company were not relevant to 
demonstrating that the Petitioner was doing business. On motion, the Petitioner states, with respect to 
this determination, that "although there are many misstatements and factual errors contained therein, 
we do not at this time contest them." Therefore, since the issue of whether the Petitioner demonstrated 
that it was doing business for at least one year prior to the date the petition was filed is not addressed 
on motion, nor were any of the other bases of denial, we will consider these issues and issue of the 
Beneficiary's eligibility waived. 
III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
As discussed, in denying the petition, the Director also made separate findings that the Petitioner and 
the Beneficiary willfully misrepresented material facts. On appeal, we agreed with the Director's 
determinations. We emphasized that the Petitioner falsely and willfully represented that the 
Beneficiary was employed by the foreign employer as its operations manager from September 2009 
to May 2012, pointing to her statements in response to the Director's notice of intent to deny (NOID) 
where it acknowledged that she was never employed by the foreign employer. In addition, with respect 
to the Beneficiary, we emphasized discrepancies between her submitted Form G-325A Biographic 
Information and accompanying Form I-485, Application to Register Permanent Residence or Adjust 
Status, reflecting that she was employed by the foreign employer from March 2009 until the petition 
was filed in April 2014; and statements she made to the Department of State (DOS) on a Form~ 
160, Application for Non-Immigrant Visa, indicating she was employed as "Head Teacher" ofthel__J 
.__ _____ ___, girls branch I I as of September 14, 2011. 3 We further emphasized the 
Beneficiary's statements, specifically her stating that she did not consider herself an employee of the 
foreign employer and that she worked in this claimed position only to spend time helping her family. 
On motion, the Petitioner states that it "strongly contest[ s ]" the conclusions in our decision as to the 
Director's determination that it and the Beneficiary willfully misrepresented material facts. The 
Petitioner contends this finding by the Director was "based on the allegation" that the Beneficiary 
2 Since this issue was dispositive of the appeal, as it related to the Beneficiary's eligibility for the benefit sought, we 
declined to address and reserved the Petitioner's appellate arguments regarding the remaining bases of denial raised by the 
Director. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 T&N Dec. 516, 526 
n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
3 In signing the Form G-325A, the Beneficiary acknowledged that "[s]evere penalties are provided by law for knowingly 
and willingly falsitying or concealing a material fact." Additionally, the Beneficiary signed the F01m T-485 petition 
attesting to the veracity of the claims in her supporting documentation. In this way, the Beneficiary directly participated 
in the preparation and submission of documents that convey the false impression that she had the requisite qualifying 
employment abroad. 
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misrepresented her foreign work experience to DOS in a Form DS-160 in 2011, noting this is 
"circumstantial evidence at best." The Petitioner further asserts that "no investigation was conducted" 
and that the foreign employer and the Beneficiary's prior employer, thel I were not 
contacted to verify their assertions. The Petitioner contends that USCIS was mistaken in the 
conclusion that the Petitioner and Beneficiary willfully mispresented material facts. The Petitioner 
states that the Beneficiary did not misrepresent her foreign employment to DOS in 2011 but that she 
held dual employment with thd I and the foreign employer and was merely "putting her 
best foot forward" by listing the school as her employer in the Form DS-160. 
A. Motion to Reopen 
As noted, a motion to reopen must be based on factual grounds and must (1) state the new facts to be 
provided in the reopened proceeding; and (2) be supported by affidavits or other documentary 
evidence. 8 C.F.R. § 103.5(a)(2). In this matter, for us to grant the motion and withdraw the findings 
of willful misrepresentation the new documentary evidence would need to overcome the Director's 
prior conclusions that the Petitioner and Beneficiary willfully misrepresented material facts and our 
later agreement with these determinations. As new asserted evidence, the Petitioner provides 
affidavits from the Beneficiary, a human resources manager at thel I the general manager 
of operations of the foreign employer, and the chief executive officer of an affiliated company 
I ~ 
In a provided affidavit, the Beneficiary indicates that she was only employed in a "pro-forma manner" 
by thel I She again indicates that at the time of the Form DS-160 she had no intention of 
working for the Petitioner and only emphasized her employment with thd I as opposed to 
the foreign employer, as she thought "this would be the most impressive thing to do." The Beneficiary 
also asserts that it did not list her employment with the foreign employer since it was a "family 
business" and she did not consider herself an employee, but "was just doing my part to help my 
family." The Petitioner indicates that she nonetheless paid a "small amount" since her family "insisted 
that they pay me." 
First, the Petitioner does not acknowledge and address with new evidence the most important aspect 
of our prior decision where we agreed with the Director that it and the Beneficiary willfully 
misrepresented material facts. The Petitioner only focuses on the Beneficiary's statements to DOS in 
2011 in acquiring a visitor's visa but does not directly address her direct statements on the record 
indicating that she was not actually employed by the foreign employer. In fact, on motion, the 
Beneficiary's affidavit appears to only reaffirm these statements indicating that she "did not consider 
herself an employee" of the foreign employer and that "she was just doing her part to help [her] 
family." Now, on motion, the Beneficiary contends that she was indeed an employee of the foreign 
employer, paid a small amount, even though she did not consider herself an employee of the foreign 
employer at that time. This new assertion is not credible and inconsistent with her previous statements 
on the record. 
Furthermore, the Petitioner provides other additional documentation related to the Beneficiary's prior 
employment with thel I also inconsistent with her assertions on motion. For example, in 
her affidavit, the Beneficiary's states that was employed by thel I in a "pro-forma" position 
and a letter from the human resources manager states that she was only hired as a "titular manager" to 
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"lend prestige" and was not required to "maintain office hours" or "teach classes." The manager from 
thel I asserts that they "realized that she was committed to her full-time position with her 
family business" and only needed her on staff "to enhance our image." 
However, in apparent contradiction, the Petitioner provided another letter dated in August 2011 titled 
"Award of Bonus" reflecting that the Beneficiary received a "heartiest thanks ... for [her] enthusiastic 
participation in writing of Social Studies Workbooks and Curriculums" for thel I The letter 
further emphasized the Beneficiary's "extra time" on this project and "awarded her a performance 
bonus of Rs: 50,000." Similarly, the Petitioner provides other "academic credentials" indicating that 
the Beneficiary was performing professional development activities, likely while employed by the 
I I including participating in a "Marketing and Branding Workshop" in March 2010 and 
certificates from October 2011 and December 2011 reflecting her completion ofl I 
"Professional Development Programme[s] [sic]." In other words, the new evidence provided by the 
Petitioner on motion does little to overcome the Director's conclusion that the Beneficiary, and 
Petitioner, willfully misrepresented material facts related to her asserted foreign employment from 
September 2009 to May 2012. In fact, the additional evidence reinforces a conclusion that the 
Beneficiary was employed by thel I and not the foreign employer, as her direct statements 
also indicate. The Petitioner must resolve these inconsistencies with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved 
material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence 
submitted in support of the requested immigration benefit. Id. 
Therefore, on motion, the Petitioner's has not submitted new objective evidence reflecting that she 
was employed by the foreign employer as asserted, other than providing generic letters from the 
foreign employer and a business associate abroad. In fact, it provides direct documentary evidence 
contradicting its assertion that the Beneficiary was only employed by thel I in a "pro-forma" 
manner. The Beneficiary being awarded a bonus for writing workbooks and curriculum only further 
reflects that she was likely employed by thel I rather than the foreign employer in 2011. 
Indeed, the Beneficiary's statements appear to acknowledge this, as she herself indicates that she, at 
the time, did not consider herself an employee of the foreign employer and believed she was just 
"helping her family" when engaged by the foreign employer. 
Therefore, for the foregoing reasons, the Petitioner has not submitted new evidence to demonstrate 
that we acted in error when we agreed with the Director's determination that it and the Beneficiary 
willfully misrepresented material facts related to her asserted foreign employment. As such, the 
motion to reopen must be dismissed. 
B. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). In order to the grant the motion, the Petitioner must 
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demonstrate that our prior decision to agree with the Director's determinations as to willful 
misrepresentation by it and the Beneficiary were inconsistent with applicable law and policy. 
Here, the Petitioner does not sufficiently articulate how our prior decision was inconsistent with 
applicable law and policy. The Petitioner provides no specific citations to applicable law nor does it 
clearly articulate on what basis it "strongly contest[s]" the conclusions in our prior decision. The 
Petitioner only vaguely refers "allegations" and "circumstantial evidence," despite our prior 
determination being mainly based on the Beneficiary's direct statements acknowledging that she was 
not an employee of the foreign employer. The Petitioner farther asserts that "no investigation was 
conducted" and the foreign employer and the Beneficiary's prior employer, thel • I were not 
contacted. First, we are an appellate body, not an investigative body, and it is the Petitioner's burden 
to demonstrate on motion that our prior decision was inconsistent with applicable law or policy. The 
Petitioner provides no legal basis for an obligation on the part ofUSCIS to "conduct an investigation" 
prior to making a finding of willful misrepresentation of a material fact. In fact, the Director properly 
issued a NOID following the discovery of the Beneficiary's apparently conflicting foreign 
employment with th~ I reported to DOS in 2011, to which the Petitioner did not sufficiently 
respond. Indeed, as discussed in our prior decision, the Beneficiary acknowledged she did not consider 
herself an employee of the foreign employer, the main basis of our prior decision. 
The Beneficiary states that she did not misrepresent her foreign employment to DOS in 2011 but held 
dual employment with th~ land the foreign employer and was merely "putting her best foot 
forward" by listing the school as her employer. However, as noted in this decision, the Petitioner 
provides substantial additional evidence on motion, including a bonus letter and continuing educations 
certifications, that farther reinforce the Beneficiary's direct statements that she employed abroad by 
thel • I and was not employed by the foreign employed as claimed. The Petitioner has not 
demonstrated that our prior decision was an incorrect application of law or policy based on the 
evidence in the record of proceedings at the time of the decision. 
For the foregoing reasons, the Petitioner has not met the requirements of a motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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