dismissed EB-1C Case: Construction

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-C-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a construction company, seeks ·to permanently employ the Beneficiary as its general 
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). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (I) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; (2) the Beneficiary has been employed abroad in a managerial or executive 
capacity; and (3) the Beneficiary will be employed in the United States in a managerial or executive 
capacity. The Director also found that the Petitioner and the Beneficiary willfully misrepresented a 
material fact. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's decision lacks 
detail, and relies, in part, on erroneous information. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(I )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
ofticial of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or aftiliate of the foreign employer, and that the prospective U.S. employer has 
been doing business for at least one year. See 8 C.F.R. § 204.50)(3). 
Mauer of D-C-, LLC 
II. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
Before we turn to the merits of the decision, we will address the Director's additional finding that the 
Petitioner and the Beneficiary willfully misrepresented a material fact. 
Any foreign national 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. Section 212(a)(6)(C)(i) of the Act, 8 U.S.t. 
§ 1182(a)(6)(C)(i). 
Under Board of Immigration Appeals precedent, a material misrepresentation is 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." 1 A willful misrepresentation requires that the 
individual knowingly make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled 2 Material misrepresentation requires 
only a false statement that is material and willfully made.3 The term "willfully" means knowing and 
intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts 
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are ot erwtse. 
In the denial notice, the Director stated: 
[T]he petitioner and the beneficiary misrepresented the beneficiary's position with the 
petitioner's affiliate abroad and the U.S. Petitioner by submitting documentary 
evidence in the form of experience letters[,] organizational charts, and Forms W-2 in 
an attempt to classify the beneficiary for a benefit he was ineligible for, which 
misrepresents a material fact. 
On appeal, the Petitioner asserts that "the decision does not identify a single fraudulent and/or willful 
misrepresentation in any document," offering only "generalities." We agree with this assessment. 
The Director did not specify the material facts that the submitted documents purportedly 
misrepresent. For example, the Director did not show that the Petitioner had falsified IRS Forms 
W-2, Wage and Tax Statements, or that experience letters deliberately contained false information. 
It cannot sutlice to refer to a general group of record exhibits and assert, without elaboration, that 
they collectively misrepresent a material fact. 
With respect to discrepancies between organizational charts, the attorney who prepared the 
submission in question attested that a chart showing the company in 2016 was inadvertently 
1 Mauer ofS- and 8-C-, 9 I&N Dec. 436, 447 (BIA 1961 ). 
2 Mauer of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). 
3 See 9 FAM 40.63 N2: see also Maller ofTijam, 22 I&N Dec. 408, 424 (BIA 1998) (en bane) (Rosenberg, concurring). 
'See Mauer of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). 
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Mauer of D-C-. LLC 
submitted as a chart for 2010. Previously submitted payroll reco rds dated Augu st 2016 largely 
match the first submitted version of the chart , corroborating this explanation. 
The record raises some very significant que stion s of credibilit y, some of which we will discuss 
below. There are discrepan cies in various part s of the record which undermine the credibility of 
some of the Petitioner's submi ssions, and the Petitioner has not always adequately exp lained these 
anomalies, but we cannot conclude with sufficient confidence that the Petitioner submitted these 
materials in a deliberate effort to introduce false information into the record. 
The Directo r's finding of misrepresentation is vaguely worded and the decision as a whole does not 
clarif y the question of what, exactl y, the Petitioner and the Benefici ary purportedly misreprese nted. 
As such , it is hereby withdrawn . 
III. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner did not establish that it has a qualifYing relation ship with the 
Benefici ary's foreign employer. To establish a "qualifyin g relationship" under the Act and the 
regulation s, a petitioner must show that the beneficiary ' s forei gn emplo yer 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 "affiliate s." See generally section 203(b)(l)(C) of the Act ; 8 C.F.R. 
§ 204.5(j)(3)(i)(C). 
The regulati on and ~ase law contirm that ownership and control are the factors that determine 
whether a qualif ying relationship exists betwe en United States and foreign entitie s for purposes of 
this visa class ification. 5 In the context of this visa petition , ownership re fers to the direct or indirect 
legal right of possession of the assets of an entity with full power and author ity to contro l; control 
means the direct or indirect legal right and auth ority to direct the esta blishment, management, and 
operations of an entity. Malle r of Church Scient ology Int '/, 19 I&N Dec. at 595. 
The Director found that the Petiti oner had establi shed common ownership , but not commo n control, 
of the U.S. and foreign comp anies. The Petiti oner claimed that the Beneficiary and his brother each 
hold a 50% interest in the petitioning company and in the foreign entity, 
The Director found, however , that the Benefic iary and his brother do not contr ol the foreign 
company. 
The tran slated minutes from a special shareholders meeting of the foreign entity on , 2014 , 
amended the company ' s bylaws, including the provision that the company will be managed by a 
board of directors consisting of two · shareholding main directors and two non-sharel}olding 
managing directors. Becaus e the Beneficiary and his brother are shareholders, they are only elig ible 
to·serve as main directors. The Director concluded that the managing directors have greater powers 
5 See Malter of Church Scientology lnt 'I, 19 I&N Dec. 593 (B IA: 1988); see also Mauer of Siemens Med. Sys., Inc., 19 
I&N Dec. 362 (BIA 1986); Mauer of Hughes, 18 1&N Dec. 289 (Co mm 'r 1982) . 
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Maller of D-C-. LLC . 
than the main directors, and therefore the shareholding main directors have owner ship, but not 
control, of the foreign entit y. 
On appeal, the Petitioner maintains that the main directors control the foreign entity, wherea s "the 
Managing Director exercises a more limited set of powers." The record supports this assertion. The 
bylaws and meeting minutes that formed the basis for the Direct or's finding list five powers for the 
managing directors. The main directors have those same powers , and additional, exclusive powers 
relating to disposition of assets , negotiation of credit, and calling shareholder meeting s. The main 
directors are not subject to the managing directors ' authority. We agree with the Petitioner ' s 
assertion on appeal that "the Managing Director exercises a more limited set of powers." 
But a major issue remains. 
In a request for evidence , the Director asked for additional "documentation that establishes 
ownership and control" of the two entities. The Petitioner submitted the following documents: 
• Translated meeting minutes, dated 2008, indicating that the shareholder s of the 
foreign company had delegated "the manag ement and complete control of the operations" of 
the 
company to the Beneficiary's brother. 
• Translated meeting minutes, dated 2014, indicating that the shareholders had 
delegated "the management and complete control of the [Petitioner 's] operation s" to the 
Beneficiary's brother. 
• The Petitioner's Operating Agreement , dated 2014, naming the Beneficia ry and his 
brother as managers of the petitioning company : 
• An addendum to the Operating Agreement , dated 20 I 4, indicating that the 
Beneficiary would retain his ownership of the company but his brother "sha ll ... be the sole 
manager" of the petitioning U.S. compan~. 
These documents , however , are all in conflict with materials that the Petit ioner had originall y 
submitted with the petition: 
• The Petitioner's Articles of Organization , filed 2014 , show that the company's 
original name was The Petitioner kept that name until 
2015, when it filed Articles of Amen9ment to chang e the com pany's name to the name 
that it now uses. [f the company did n ot change its name until 2015, then any 
documents from 2014 should show the company 's old name, not its new name. But 
all of the docum ents described above , and the member ship certificate s in the initial 
submission, consistently showed the compan y's new name. 
• The Petitioner also filed Articles of Amendment on 2015, to repo rt a change of 
address. That document includes a handwritten annotation identifying the Benefic iary as a 
manager of the company. This directly contradicts the "Addendum to Operating 
Agreement ," which claimed that the Beneficiary ceased to be a manager on 2014. 
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Mauer of D-C-, LLC 
Because the Petitioner changed its name in 2015, any authentic documents from before that 
date should use the Petitioner 's old name, but most of the relevant documents dated 2014 show the 
new name . The Director did not note these discrepancies in the denial notice. But on appeal, the 
Petitioner , represen ted by a new attorney, claim s that the meeting minutes from 2008, 
and 2014, were "submit ted in error" and, because the minutes were never filed with the 
proper Venezuelan authorities, they have no legal effect in Venezuel a. 
An exhibit list submitted with the appeal refers to "Membe rship CertiJicates ... and Stock/Shares 
Ledger, issued effective as of 2014 (this corroborates that this' document was created with 
retroactive effect, but the company amended its name in 2015.)" When the Petitioner first subm itted 
the share certiticates, there was no indication that they were "created with retroactiv e effec t." The 
Petitioner does not explain why there are no membership certificates under the company's original 
name , or why the certificates in the record have been backdated to a time when they cannot have 
existed in that form. 
The Petitioner also submits a "Secon d Addendum to Operating Agreement ," dated 
2017, and signe d by both the Beneficiary and his brother. In that document , the signatories 
acknowledge that they "executed and completed Membership Certificates and an Operating 
Agreement among other corporate records" at an unspecified time after the company had already 
changed its name, but used "the inception date of the Company, 20 14." They further assert 
that they "erroneous ly executed an Addendum to Operating Agreement . . . also using the inception 
date of the Company as its etTective date." (The date on the addendum is 2014 , which 
was not the company's inception date.) They add that "[t)he First Addendum was executed on the 
advice of cou nsel and based on a misapprehension of the law," and assert that they have always 
jointly made "[a]ll decisions of the Company." 
The new statement leaves key questions unanswered . The Petition er acknowledges that the share 
certificates and certain other company documents in the record were created after the Petitioner's 
2015 name change, not in 2014 as dated. But the Petitioner does not provide the actual creation date 
of the documents, or explain the circumstances behind that creation. The Petitioner provides no 
corroboration from the unnamed 6 attorney, to whom they attribute the backdated documents, and the 
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Petitioner does not explain the apparent nonexistence of authentic documentation from 2014. It was 
already apparent that the submitted documents could not have existed in 20 14; the Petitioner's 
statement to that effect adds nothing of substance to the record, and does not resolve the serious 
questions of credibility and authenticity that n~cessaril y arise from the sub mission of backdated 
documents in this way. It is particularly significant that, at the time the Petitioner first submi tted the 
documents, there was no indication that they were reconstruction s, recreations , or anything other 
than photocopie s of authentic , original documents. A belated acknowledgment of the discrepanc ies, 
after the Petitioner replaced its attorney, cannot fully dispel these legitimate concerns . 
6 In a letter submitted on appeal, attorney refers to "a cler ical error" at his law firm, but he does not state 
that this error extended to the creat ion and submi ssion of backdated membersl~ ip certificates and meet ing minute s. 
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Mauer of D-C-, LLC 
By signing the Form 1-140, the Beneficiary attested under penalty of perju ry, on behalf of his 
company, that the petition and the evidence submitted with it were true and correct. By attempti ng 
to disavow this responsibility by blaming an unnamed atto rne y, the Petitioner and the Beneficiar y 
effectively acknowledge that the initial petition contained incorrect asse rtions of material fact. 
In the same way that the petitioner and the Beneficiary executed the "Second Addendum" in 
conjuncti on with the appeal , it appea rs that the Petitioner creat ed key company document s afte r the 
fact in order to support the underl ying petition . The Petitioner has not identifi ed any othe r reason or 
set of circumstances beh ind the backdated docu ments . 
The Ben eficia ry and his brother state that the Benefic iary never relinquished his role as a manage r of 
either company, but they do not explain why they agreed to the c reation of backdated document 
which they had no intention of filing with the proper authorities, and which attested to o rganizational 
changes that they had no intention of making. ' 
c ·opies of various Florida filings between 2014 ;and 2017 show that the Petitioner has cons istently 
identified the Beneficiary as a manager of the petitio ning com pany, but a mana ger is not necessarily 
a member (i.e., owner). The reco rd does not categorically rule o ut shared ownership of the two 
companie s, but the mere possibility of a qualifyin g relationship does not meet the Petiti one r's burden 
of proof. 
A petitioner must establish that it meet s each eligibilit y requ irem ent of the benefit sought by a 
preponderance of the evidence. Maller of Chawathe, 25 I& N Dec. 369, 375-76 (AAO 20 I 0). In 
other words, a petitioner must show that what it claims is "more likely than not" or "probab ly" tru e. 
To determin e whether a petitioner has met its burden under the preponde rance standard, we consider 
not only the quantity, but also the quality (includin g relevance, probative value, and cred ibility ) of 
the evidence . !d. at 376; Maller l~( E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989). 
In this case , the Petit ioner tiled a petition, and thus atte mpted to secu re a priority date , contai ning 
numer ous documents that , for various reasons, the Pet itioner has since disavowed , rep udiate d, or · 
replaced. Because the Petitioner has not submitted authentic, independ ently verifiab le 
organization al documents from 2014 that would reso lve the issue , and the backdated documents in 
the record are seriously compromised, the Petition er has not met its burden of proof in this regard. 
The record does not reliably document the ownership of the petiti oning U.S. entity, and therefore the 
Petition er has not establi shed common ownership with 
Absent reliable documentation of ownership, the Petitioner has not esta blished a qualifying 
relationship with the Benefici ary's former foreign employer. 
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Mauer of D-C-. LLC 
IV. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary has been , and will be, 
employed in a managerial or executive capacity as claimed. The Director based this conclusion on 
several factors, including the following: 
• The foreign company's general manager, said to be the principal person through whom the 
Beneficiary acted , was president or general manager of a number of other companies, which 
reduced the time she would have been available to work for the foreign entity; 
• The Petitioner made conflicting and unsupported claims about the foreign entity' s staffing; 
• The Petitioner did not corroborate claims that several of the Beneficiar y' s subordinat es at the 
foreign entity were professionals; 
• The record contained conflicting information about the staffing of the petitioning U.S. entity; 
and 
• Several key employees of the U.S. and foreign entities engage in outside employment that 
apparently limits the time they can spend relieving the Beneficiary from performing non­
qualifying tasks. 
Before we can properly consider the above issues , or the specific s of the Beneficiary' s employment, 
the Petitioner must first meet the threshold requirement that at least one year of the Beneficiary's 
employment abroad took place during the three-year period established by the statute and further 
clarified in the regulations. 
By statute, a beneficiary must have worked abroad for at least one year during the three years 
preceding the filing of the petition. See section 203(b)(l )(C) of the Act. In cases where the 
beneficiary is already in the United States, working for the petitioner or its subsidia ry or affiliate, the 
foreign employment must have taken place "in the three years preceding entry as a nonimmigrant." 
8 C.F.R. § 204.5G)(3)(i)(b). This regulatory clause addresses some beneficiaries who are in the 
United States at the time of filing, but ambiguity remains. For example , when a bene ficiary has 
made multiple entries as a nonimmigrant, the regulation does not specify which entry is the crucial 
one. The Beneficiary in the present case has entered the United State s as a nonimm igran t on dozens 
of occasions since 2006. Also , the regulation does not address beneficiaries who are in the United 
States at the time of filing, but who are not employed by the petitioner or its affiliate or subsidiary. 
We must address such circumstances case by case. 
Regarding the Beneficiary 's past experience, the Petitioner stated: 
He has been employed by ... since 2002. On Augu st 
of 2010, [the Beneficiary ' s] E-2 visa as· a dependent was approved and in June of 
2014 he became (the Petitioner's] General Manager. Thus, [the Beneficiary] held a 
managerial position with the foreign affiliate company for more than one year in the 
three years preceding the time of the tiling of this application . 
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Matter of D-C-. LLC 
The Benefici ary's last document ed paycheck from the foreign compa ny was for work perfo rmed in 
August 2010 , more than six years before the petition's filing date of December 28, 2016. The 
Beneficiary's first U.S. entry in 
E-2 s tatus occurred on September 27, 2010. Since that time, the 
Beneficiary has made more than 50 trips into and out of the United States. In the denial notice , the 
Director touched on this issue briefly , stating "[t)he pe~i tioner did not prov ide any infonnation as to 
the Benetici ary's duties between August of2010 and June of2014 ," but the Dire ctor did not pursue 
the issue further. 
The Petitioner states that "the Beneficiary obtained nonimmigrant status on or about September 
20 I 0," implying that that date should mark the end of the statutory three-year period. This asse rtion 
is problem atic, partly because the Beneficiar y "ob tained nonimmi grant status " on prior occasions, 
typically as a B-2 nonimmigrant visitor. The E-2 status . that the Beneficiary first assu med in 
September 2010 derived from his spouse's employment, and was unrelated to his work for the 
foreign entity or any related entity in the United States. To select the September 2010 entry as the 
deciding one , therefore, would be indefensibly arbitrary. 
An adopted decision of the Administrative Appeals Office addressed the issue of a lengthy 
interruption in a beneficiar y's employment while the beneficiary is in the United States: "A single 
nonimmigrant entry to work for the Petitioner does not permanentl y qualif y a beneficiary for EB-1 
classification. "7 Matter of S-P-, Inc., Adopt ed Decision 2018-0 I 3 (AAO Mar. 19, 20 18). 
Therefore , "a break in qualifying employment longe r than two years will interr upt a beneficiary's 
continuity of employment with the petitioner 's multinational organizatio n," whether that break 
occurre d abroad or in the United States. !d. 
The Benetic iary has intermittentl y held employment authorization between 2010 and 2016 , but the 
he did not enter the United States in September 2010 to work for the Petitioner; the petitioning entity 
did not come into existence until June 2014 , nearly four years later. This period would be a 
disqualifying interruption in the Beneficiary's qualifying emplo yment unless, before September 1, 
2012, he entered the United States to work for a related U.S. emp loyer, and thereb y reduced the gap 
to less than two years. 
The Petitioner initially submitt ed the Benefici ary's resume , indicating that the Beneficiary had 
worked as chief operating officer for from "20 13 To Date." On appeal, the 
Petitioner submits a new resume from the Benefici ary, stating that the emp loyment at 
began in 2012. The Petition er submits no contemporaneous documentation 
(such as tax or payroll 
records) to establish which (if either) date is more accurate. The vague and initially unclaimed date 
"20 12" does not indicate when in 2012 the employment began. The omission is relevant beca use the 
Beneficiar y's unemployment would have hit the disqualifyin g two-year mark in early September of 
that year . 
7 In the present case, the Benefi cia ry did not enter the Un ited States "to work tor the Petitioner," but this distinction 
cann
ot reasonably be said to exempt the present petition from the broader princip les embodie d in S-P- . 
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Matter of D-C-, LLC 
More significantly, the Petitioner has not claimed or demonstrated that has a qualifying 
relationship with the petitionin g ent ity or with Documents in the record 
identify the Benefic iary's spouse, and his brother's spouse, as the owners and managers of 
Quality of evidence aside , taken at face value the Petition er' s documents show no shared 
ownership , and therefore no qualifying relationship, between and the petitioning entity. 
The record shows, and the Petitioner acknowledg es, that the Beneficiary stopped working abroad 
after August 20 l 0. The Petitioner did not exist, and therefore could not have employed the 
Beneficiary
, before June 2014. The Petitioner 's only identified emp loyer during 2010-2014 was not 
related to the Petitioner or to the Beneficiary's foreign employer. Therefore, the record , on its face, 
shows a disqualifying interruption of nearly four years from September 201 0 to .June 2014. 
Because the record does not indicate that the Beneficiary engaged in qualifying employment in the 
United States or abroad between September 2010 and June 2014 , the Petitioner has not met a core 
statutory requirement and, for this reason, the petition cannot be approved. The Beneficiary's past 
employment with canrtot serve as quali fying employment for any petition 
tiled after August 31, 2012. 8 
Given the disqualifying interruption in the Beneficiary's employment from September 2010 to June 
2014 (and possibly longer), further discussion of the nature of the Beneficiary's work for the entity 
abroad and for the Petitioner in the United States would. not affect the outco me of this proceeding. 
Because the above findings are dispositive of the Petitioner's appeal, we need not address the nature 
of the Beneficiary's work abroad and with the Petitioner in the United States in great detail. 
We will observe, however, that on appeal, the Petitioner does not establish that it had subm itted 
qualifying job descriptions for the Beneficiary with the petition. Instead, as the Petitioner has done 
with much of the record, the Petitioner asserts that it "discovered errors in the previou s descriptions" 
and submits new ones on appeal. The purpose of an appeal is to address prior adjudicative error, 
(see 8 C.F.R. § 1 03.3(a)(i)(v)), not to repudiate key documents in the initial liling and deman d a 
superseding decision based on new evidence. By signing the petition form, the Petitioner atteste d 
under penalty of perjury that the petition and the facts therein are true and correct. The numb er and 
variety of materials that the Petitioner now disavows as erroneous dlle to "draft ing error" or 
"attorney error" strain credulity . 
V. CONCLUSION 
The Petitioner did not establish a qualifying relationship with the Beneficiary's former foreign 
employer. Even if the Petitioner had established that relation ship, the Beneficiary's emplo yment 
8 For the sake of clarity, we note that any future transfer of shares to create a qualifying relationship (for example, if the 
Beneficiary purchases a controlling interest in would not retroactively create qualifying circumstances as 
of the petition's filing date. A petitioner may not make rnaterial changes to a petition in an effort to make a deficient 
petition conform to initial requirements. See Matter of lzuinmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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Malter of D-C-. LLC 
abroad up to 2010 cannot establish eligibility because of the interruption in potentially qualifying 
employment from 20 I 0 to 2014. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-C-. LLC, ID# 1265222 (AAO June 13, 2018) 
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