dismissed EB-1C Case: Construction Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-F-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 20,2018 
APPEAL OF TEXAS SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a construction services company, seeks to permanently employ the Beneficiary as its 
"Executive Director (President)" under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)( I )(C), 
8 U.S.C. § 1153(b)(I)(C). This classification allows a U.S. employer to pem1anently 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 Petitioner did not 
establish, as required, that: (I) it has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary was employed abroad, or would be employed in the United States, in 
an executive capacity; and (3) it has the ability to pay the Beneficiary the proffered wage of the date 
of tiling. Further, the Director determined that the Petitioner had willfully misrepresented material 
facts with respect to its claimed qualifying relationship with the Beneficiary's foreign employer. 
On appeal, the Petitioner submits additional evidence, and asserts that the Director improperly 
detem1ined that it willfully misrepresented material facts. The Petitioner requests that we withdraw 
the finding of willful misrepresentation and "determine that the sole basis tor denial" is the 
Petitioner's failure to establish eligibility for the Beneficiary sought. 
Upon de novo review, we will dismiss the appeal. The Petitioner concedes that it did not establish 
eligibility for the immigration benefit sought, and does not object to the Director's adverse findings 
regarding the Beneficiary's employment abroad in an executive capacity, his proposed employment in 
the United States in an executive capacity, and its ability to pay the Beneficiary's proffered wage. We 
agree with the Director's findings and will not further address these grounds for denial. 
As the Petitioner's arguments on appeal are limited to its qualifying relationship with the fi.1reign 
employer and the Director's finding of willful misrepresentation, we will limit our discussion to these 
issues. Although we will dismiss the appeal, we will withdraw the finding of willful misrepresentation. 
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 
.
Matter of 1-F-, LLC 
capacity, and seeks to enter the United States in order to continue to render managerial or exec utive 
services to the same employ er or to its subsidiary or aftiliate. Section 203( b)( l)(C) of the Act. 
The for m 1-140, Immigr ant Petition tor Alien Worker, must include a state ment from an authorized 
oftic ial of the petitioning United State s employer which demonstrates that the beneficiary has been 
emp loyed abroad in a managerial or executive capacity for at least one year in the three years prec eding 
the filing of the petition, that the beneficiary is coming to work in the United States tor the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employe r has 
been 
doing business f-Qr at least one year. See 8 C.F .R. § 204.50)(3). 
II. QUALIFYING RELATIONSHIP 
The tirst issue to be addressed is whet her the Petitioner estab lished that it has a qu alifying 
rela tion ship with the Benefici ary's foreign emplo yer, , located in Colombia. 
To establish a "qualifyin g relationship ," the Petiti oner must show that the Bene ficiary' s foreign 
emp loyer and the propos ed U.S. empl oye r are the same employ er (a U.S. entity with a foreign 
office) or relat ed as a " parent and subsidi ary" or as "affiliate s." See§ 203(b)( l)(C) o f the Act ; see 
also 8 C.F.R. § 204.5(j)(2) (provi ding definitio ns of the terms "afti liate" and "su bsidiar y"). 
"Sub sidiary" means a finn, corporation , or other lega l entity of which a parent owns , directly or 
indirectly , more than half of the entity and cont rols the e ntity; or owns, directl y o r indirectly, half of the 
entity and control s the entity; or owns, directly or indirect ly, 50 percent of a 50-50 joint ven ture and has 
equa l control and veto power ove r the entity; or own s, directly or indirect ly, less than half of the ·entity, 
but in lact cont rols the entity . 
The Petitioner 
has co nsistently claimed that it i s a wholly-owned subsidiary of and 
submitt ed the following evid ence, eith er at the time of filing or in respo nse to the Direc tor ' s notice 
·of intent to deny (NOlD): 
• Copy o f its Members hip Certification No. I, issued on May 25, 2009, identifying 
as the owner of 100% of its membership un its. The Beneficiary 
sign ed the certific ate as "member." 
• Copy of its operating agre eme nt, dated June 11, 2009 , which identifie s 
as the sole member , and the Beneficiary as its onl y manager . 
• Copies of IRS Forms 11 20, U.S. Corporation Inco me Tax Return, to r the yea rs 
2009 through 2016, all of which identify as the sole owner at 
Schedule G. 
• Evid ence that the wire transfe rred $50,000 to the Petitioner on 
Dece mber 22, 2009 , and a total of $1.2 million betwee n Decem ber 2009 and 
Dece mber 20 I 1. 
• Copy (with Engli sh translati on) of a Sept em ber 2013 letter from to 
the Department of International Exchan ges, in 
2 
.
Maller r41-F-. LLC 
which it infonned the bank that it contributed $1066.40 in exchange for 100% 
ownership of the Petitioner on May 7, 2009. 
• A July 20\3 letter from accountant contim1ing the capital 
contribution of $1 066.40 made in exchange for 100% ownership of the Petitioner 
on May 7, 2009. 
• The foreign entity's "Certificate of Existence" (with partial English translation) 
from the Secretary of the Chamber of Commerce for This document 
identifies the Petitioner as majority-owned subsidiary. 
• Printout from the toreign entity's website (not translated) which lists the 
Petitioner as 'filiales." 
The record also comains the following evidence relevant to the Petitioner's ownership and control: 
• Articles of organization for Florida Limited Liability Company filed on May 7, 
2009, which identifies t()ur individuals as "Manager/Members"- the Beneficiary, 
and 
• Amended anicles of organization, filed May 22, 2009, which identifies the 
Beneficiary as the Petitioner's sole manager/member. 
• Petitioner's 2010 Florida annual report which identifies the Beneficiary as 
"MGRM" or manager/member 
• 20 II to 2017 Florida annual reports which identities the Beneficiary as "MGR" or 
manager. 
• Local Business Tax Receipt which identifies the Beneficiary as 
the Petitioner's owner. 
In the denial decision , the Director found that there were unresolved inconsistencies in the record. 
The Director noted that the Petitioner did not provide contemporaneous evidence of the foreign 
entity's inittal contribution used to purchase its claimed membership interest in May 2009. 
Moreover, the Director emphasized that the Petitioner did not explain why neither its articles of 
organization tikd May 9, 2009, nor its amended articles of organ[zation filed May 22, 2009, idcnt[fy 
the foreign entity as the company's owner. Finally, the Director addressed the Petitioner's business 
tax receipt and found that the Petitioner did not clarify why it listed the Beneficiary as its owner. 
On appeal, the Petitioner maintains that there is sufficient primary evidence to establish that the 
foreign entity is its sole owner. The Petitioner asserts that U.S. Citizenship and Immigration 
Services has never asserted that the membership certificate, operating agreement, tax returns, and 
documentary evidence provided by the foreign entity are fabricated or not genuine. Further, the 
Petitioner claims that it "defies common sense" for it to list as its sole owner on its 
corporate tax returns if it is not the owner, for to file official documentation \vith the 
Colombian government and banking institutions acknowledging the Petitioner as its subsidiary if it 
is not a subsidiary, or for to wire $50,000 to the Petitioner a few months subsequent to 
its establishment, if it is not the owner. 
.., 
.) 
.
Maller of 1-F-. LLC 
The Petitioner also addresses the Local Business Tax Receipt which lists the 
Beneficiary as owner. The Petitioner provides a copy of the application for the business tax receipt, 
and notes that it requests the name of the ;;owner, principal or officer," while the receipt issued lists 
the name provided as "owner." 
We agree with the Director's determination that the Petitioner has not established its qualifying 
relationship with the foreign entity. 
The Petitioner has not resolved the inconsistency presented by its articles of organization. The 
Petitioner initially named four individuals as members, and then amended its articles to list the 
Beneficiary as the sole manager/member. While the Petitioner, beginning in 201 1, began to identify 
the Benef1ciary as "manager" rather than "manager/member" in its Florida '!-nnual reports, it is 
unclear why the company never amended its articles of organization to recognize the foreign entity 
as its sole member. lt is reasonable to expect the information contained in the Petitioner's 
membership certificate and operating agreement to be consistent with the information in its articles 
of organization. The Petitioner must resolve this inconsistency in the record with independent, 
objective evidence pointing to where the truth lies. Matter(~{ Ho, 19 l&N Dec. 582, 591-92 (BIA 
1988). 
The Petitioner also has not explained why the initial articles of organization listed four members. 
Without an explanation, we are left. to question whether those four initial members were ever issued 
membership ceniticates. If they did receive membership certiticales, then this wou1d undermine the 
probative value of the membership certificate number 1 issued to the foreign entity on a later date. 
In addition, the Petitioner has still not provided evidence of the initial wire transfer of $1066 that the 
foreign entity claims it provided to the petitioning company in May 2009 in exchange tor a I 00% 
ovmership interest. The Petitioner asserts that the Director's decision focused on this initial transfer 
but '"glosses over" the foreign entity's transfer of$50,000 to the Petitioner in December 2009. 
However, the regulations specifically allow a director to reqLtest additional evidence in appropriate 
cases. See 8 C.F.R. ~ 204.5(j)(3)(ii). As ownership is a critic?! clement of this visa classification, a 
director may reasonably inquire beyond the identification of a member of an LLC into the means by 
which this membership interest was acquired. Evidence should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for the membership interest. 
The Petitioner's tax returns for the years 20 I 0 to 20 15·, consistently show the value of its "common 
stock" as S 1000 with no additional paid in capital. In 20 I 6, the Petitioner reported an increase in the 
value of its common stock to $1066. It was not unreasonable for the Director to request primary 
evidence of the initial wire transfer from the foreign entity and the Petitioner has not explained why 
it is unavailable. The Petitioner's claim that the $50,000 transfer that occurred during its first year of 
operations is sufficient proof of the initial capital contribution is not persuasive. 
The Petitioner has documented a number of wire transfers from the foreign entity, particularly in 
2010 and 2011. These funds were not reported as paid-in capital in the Petitioner's tax returns and 
4 
Muller of 1-F-. LLC 
these transactions were not reported on IRS Form 5472, Information Return of a 25% Foreign­
Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business. In 
addition, while the Petitioner's tax returns consistently identify the foreign entity's ownership at 
Schedule G, and most of them identify a foreign entity at Schedule K, none of them are accompanied 
by proof of filing with the IRS. The tax returns do not provide sufficient corroborating evidence of 
the foreign entity's ownership of the petitioning company. · 
On appeal, the Petitioner states that it would "defy common sense" for the Petitioner to falsely 
acknowledge the foreign entity as its parent on its tax returns, or that the parent company would 
falsely record its ownership of the Petitioner with the Colombian government, due to the tax 
implications for the foreign entity. The Petitioner did not support this statement with evidence that 
the foreign emily has been subject to tax payments based on its claimed ownership of the petitioning 
company. 
We do not discount the possibility that the foreign entity owns the petitioning company, however, 
the Petitioner concedes that "this case involves contlicting information due to admittedly sloppy and 
inattentive corporate recordkeeping'' Due to the unresolved inconsistencies addressed above, the 
Petitioner has not met its burden to establish that it has a qualifying relationship with the 
Beneficiary's foreign employer, and we will dismiss the appeal for this additional reason. 
lii. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The remaining issue to address is whether the Director properly entered a tinding of willful 
misrepresentation of a material fact. The Director specifically found that the Petitioner had 
misrepresented its qualifying relationship with the foreign entity. 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration bene lit to which one is not entitled. Maller of Kai Hing !-lui, 15 I&N Dec. 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 Afaller '!l Tijam, 
22 I&N Dec. 408, 425 (BIA 1998); Maller of Healy and Goodchild, 17 I&N Dec. 22, 2& (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." M{l/ter of Ng, 17 I&N Dec. 536, 53 7 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in vtsa 
petition proceedings, he or she must determine: I) that the petitioner or beneficiary made a false 
representation to an authorized ofticial of the United States government; 2) that the 
misrepresentation was willfully made; and 3) that the fact misrepresented was material. See Maller 
ofM-, 6 I&N Dec. 149 (BIA 1954); Maller ofL,L-, 9 I&N Dec. 324 (BIA 1961); Matter ofKai f-ling 
Hui, 15 I&N Dec. at 288. 
5 
Maller of 1-F-. LLC 
Due to the consequences of a finding that a foreign national has engaged in the intentional 
misrepresentation of a material fact, we must "closely scrutinize" the factual basis behind such a 
finding. See Malter o/Shirde/, 19 l&N Dec. 33, 35 (BIA 1984). 
The Director's findings were based on inconsistencies in the documentation submitted to establish 
the foreign entity's ownership of the Petitioning company, which we discussed in detail above. 
There are several acknowledged irregularities in the Petitioner's evidence, a few unresolved 
inconsistencies in the record, and insufficient evidence overall to establish the claimed qualifying 
relationship. However, absent evidence that someone other than the foreign entity more likely than 
not actually owns the Petitioner, there is insufficient factual support for the Director's finding that 
the Petitioner willfully misrepresented its ownership by the foreign entity. We cannot determine that 
the Petitioner's representation of its ownership is a false representation, only that it has not met its 
burden of proof to meet this eligibility requirement. 
Accordingly, the Director's finding of willful representation of a material fact is withdrawn. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not demonstrated that the Beneficiary was 
employed abroad or would be employed in the United States in an executive capacity, that it has the 
ability to pay the Beneficiary's proffered wage, or that it has a qualifying relationship with the 
Beneficiary's last employment abroad. The Director's finding that the Petitioner willfully 
misrepresented material facts in support of this petition is withdrawn. 
ORDER: The appeal is dismissed. 
Cite as Matter olf-F-. LLC, ID# 1051885 (AAO Mar. 20, 2018) 
6