dismissed EB-1C Case: Food Distribution

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 12, 2023 In Re : 27460470 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (Multinational Managers or Executives) 
The Petitioner, an importer and distributor of international food products , seeks to permanently employ 
the Beneficiary as its operations 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 on multiple grounds concluding that the 
record did not establish that the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer , that it had been doing busine ss for at least one year at the time of filing , and that it had the 
ability to pay the Beneficiary 's proffered wage. The Director further determined that the Petitioner did 
not establish that the Beneficiary had been employed abroad in a managerial or executive capacity for 
at least one year in the three years preceding the filing of the petition , and that he would be employed in 
a managerial or executive capacity in the United States. Finally, the Director concluded that both the 
Petitioner and Beneficiary had willfully misrepresented facts that are material to eligibility for the 
requested classification. The matter is now before us on appeal. 8 C.F .R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 I&N Dec . 369, 375-76 (AAO 2010) . We review the questions in this matter de 
novo. Matter ofChristo 's, Inc. , 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review , we will 
dismiss the appeal. 
I. LAW 
Section 203(b )(1)(C) of the Act makes an immigrant visa 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. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official 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 affiliate 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. § 204.5(i)(3). In addition, a petition for a multinational 
manager or executive must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage from the time the petition is filed and continuing through 
adjudication. See 8 C.F.R. § 204.5(g)(2). 
II. ANALYSIS 
As noted, the Director denied the petition on multiple independent and alternative grounds, and further 
determined that both the Petitioner and Beneficiary had willfully misrepresented facts that are material 
to eligibility for the requested benefit. Prior to the decision, the Director issued a notice of intent to 
deny (NOID) to allow the Petitioner an opportunity to address the deficiencies in its initial evidence, 
and to rebut derogatory information of which it may have been unaware. See 8 C.F.R. § 103.2(b)(8) 
and (b )(l 6)(i). The record reflects that the Petitioner did not submit a response to the Director's NOID. 
On appeal, the Petitioner submits a statement and additional supporting evidence. The Petitioner 
asserts that the evidence of record is sufficient to demonstrate that all eligibility requirements for the 
requested classification have been satisfied. The Petitioner also briefly addresses the Director's 
separate finding of willful misrepresentation, noting that all previously submitted documents were 
"true and correct." The Petitioner does not contest the Director's determination that it did not submit 
a response to the NOID issued on May 18, 2022. For the reasons discussed below, we will dismiss 
the appeal. 
A. Qualifying Relationship 
The Director denied the petition, in part, based on a determination that the Petitioner did not establish 
that it maintains a qualifying relationship with the Beneficiary's claimed foreign employer. To 
establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign employer 
and the proposed U.S. employer are the same employer (a U.S. entity with a foreign office) or related 
as a "parent and subsidiary" or as "affiliates." See § 203(b)(l)(C) of the Act; see also 8 C.F.R. § 
204.5(i)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
Although the Petitioner indicates that it is a subsidiary of the foreign entity 
I, it has consistently stated that both entities are owned b._y_t_h_e_s-am_e_i_n_d-iv-i-du_a_l_., 
I.______ __.I If adequately documented in the record, common ownership and control by the same 
individual would indicate an affiliate relationship as defined at 8 C.F.R. § 204.5(i)(2). 
As evidence of the foreign entity's ownership, the Petitioner submitted an "Individual Establishment 
Registration Certificate" issued by the Saudi Arabian Ministry of Commerce and Industry which 
indicates that the business is owned byl Ihowever, the English-language translation that 
accompanies the original document in the Arabic language does not include the required certifications 
from the translator. See 8 C.F.R. § 103.2(b )(3). 
2 
With respect to the petitioning U.S. employer, the Petitioner provided copies of its certificate of filing, 
a certificate of formation, and a copy of its bylaws, all dated in April 2016. None of these documents 
provides information regarding the ownership of the U.S. corporation. 
Although the Director issued a NOID affording the Petitioner an opportunity to provide additional 
evidence in support of the claimed qualifying relationship between the two companies, the Petitioner 
did not submit a response to that notice. Accordingly, the Director concluded that the Petitioner did 
not submit sufficient evidence to establish a qualifying relationship between the U.S. and foreign 
entities. 
On appeal, the Petitioner maintains that the previously submitted Individual Establishment 
Registration Certificate establishes that I lis the sole owner of the foreign entity. It also 
asserts that he "owns 51 % interest in the U.S. business." It resubmits the foreign entity's registration 
certificate with a slightly revised English translation, which like the previous version, lacks the 
translator's certifications required by the regulation at 8 C.F.R. § 103.2(b)(3). The Petitioner also 
resubmits its certificate of formation and corporate bylaws emphasizing that these documents "clearly 
identify'1 las its president. 
We agree with the Director's determination that the Petitioner did not establish its qualifying 
relationship with the Beneficiary's claimed foreign employer because it did not submit evidence that 
documents the Petitioner's ownership and control. Neither the certificate of formation nor the 
company bylaws identify the company's shareholders, the total number of shares issued, the exact 
number issued to any given shareholder, and the subsequent percentage ownership and its effect on 
corporate control. Without foll disclosure of all relevant documents, we are unable to determine the 
elements of ownership and control. See, e.g., Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 
(Comm'r 1986). 
Contrary to the Petitioner's claim on appeal, the fact that the Petitioner's claimed majority or sole 
shareholder is named as the company's president on the certificate of formation and company bylaws 
is not sufficient to establish that this individual has a controlling ownership interest in the company. 
Further, the Petitioner has made inconsistent claims regarding its president's ownership interest in the 
U.S. company which have not been resolved through independent, objective evidence. Accordingly, 
the Petitioner has not established the required qualifying relationship with the Beneficiary's claimed 
foreign employer and the appeal will be dismissed for this reason. 
B. Ability to Pay 
Any petition filed for an employment-based immigrant, which requires an offer of employment must 
be accompanied by evidence that the prospective United States employer has the ability to pay the 
proffered wage. A petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). To 
establish its ability to pay, a petitioner must submit copies of its annual reports, federal tax returns, or 
audited financial statements. Id. 
The Petitioner stated on the Form I-140 that it had offered the Beneficiary an annual salary of$36,000. 
However, it did not submit annual reports, federal tax returns, or audited financial statements in 
3 
support of the Form 1-140 and therefore did not meet the evidentiary requirement set forth in the 
regulations. In the NOID, the Director advised the Petitioner of this deficiency and allowed the 
Petitioner an opportunity to supplement the record with this required initial evidence, noting that it 
must establish its ability to pay dating back to the March 2017 filing date. As noted, the Petitioner did 
not respond to the NOID and the Director therefore denied the petition on this additional ground. 
On appeal, the Petitioner states: 
The regulations, with the heading, "Retention of EB-1, EB-2 and EB-3 Immigrant 
Workers and program Improvements Affecting High-Skilled Nonimmigrant Workers," 
become effective on January 17, 2017. 
According to the new regulations, is that 1-140 petitions remain valid for the sponsored 
employee (beneficiary) to use in order to adjust status to lawful permanent resident. .. 
or apply for an immigrant visa ... if the sponsoring employer goes out of business or 
withdraws the petition 180 days after USCIS approved the petition or 180 days after 
the employee submitted an adjustment application. 
The Petitioner indicates that it is providing "a copy of the current status of the U.S. business" as 
evidence of its ability to pay. The attached evidence includes copies of the Petitioner's monthly bank 
statements for the 2021 and 2022 and its profit and loss statement and balance sheet for 2022, both of 
which are unaudited. 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given 
an opportunity to respond to that deficiency, we will not accept evidence offered for the first time on 
appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). Further, we note that even ifwe considered the new evidence, it would not establish the 
Petitioner's ability to pay at the time of filing through adjudication. 
In its statement on appeal, the Petitioner appears to be referring to the automatic revocation provisions 
at 8 C.F.R. § 205.l(a)(3)(iii)(C) and (D), which state that if a sponsoring employer withdraws an 
immigrant petition or terminates its business 180 days or more after an associated adjustment of status 
application has been filed, the petition "remains approved" and the beneficiary may remain eligible 
for adjustment of status under section 204.5(j) of the Act and in accordance with 8 C.F.R. § 245.25. 
Under section 204.5(j) of the Act, employment-based immigrant visa petitions "shall remain valid" 
for certain beneficiaries who obtain new job offers from the same or different employers. Under 8 
C.F.R. § 245.25(a)(2)(ii)(B)(l), if a beneficiary's immigrant petition is pending when the beneficiary 
notifies USCIS of a new job offer on Form 1-485 Supplement J, and such notification is made at least 
180 days after the date the beneficiary filed an adjustment of status application, the adjudication of the 
pending petition shall be without regard to the requirement in 8 C.F.R. § 204.5(g)(2) to continuously 
establish the ability to pay the proffered wage after filing and until the beneficiary obtains lawful 
permanent residence. 
However, the Petitioner did not withdraw the petition or terminate its business more after the 
Beneficiary's adjustment of status application had been pending for more than 180 days, nor does the 
4 
record reflect that the Beneficiary notified USCIS of a new job offer on Form 1-485 Supplement J. 
The provisions at 8 C.F.R. § 245.25 do not apply based on the facts presented here and the Petitioner 
must establish its ability to pay from the time of filing through adjudication. Even if 8 C.F.R. § 
245.25(a)(2)(ii)(B)(l) were applicable, the Petitioner would still need to establish that it had the ability 
to pay the proffered wage at the time of filing this petition in 2017. 
A petitioner cannot satisfy the ability to pay requirement without submitting copies of its annual 
reports, federal tax returns, or audited financial statements. 8 C.F.R. § 204.5(g)(2). The Petitioner has 
not submitted this required initial evidence and the Director properly denied the petition on this basis. 
For this additional reason, the appeal will be dismissed. 
C. Doing Business and Willful Misrepresentation 
To establish eligibility for this classification, the Petitioner must establish that the prospective U.S. 
employer has been doing business for at least one year at the time of filing. 8 C.F.R. § 204.5(i)(3)(i)(D). 
Doing business means the regular, systematic and continuous provision of goods and/or services and 
does not include the mere presence of an agent or office. See 8 C.F.R. § 204.5(j)(2). 
The Petitioner filed the Form 1-140 on March 7, 201 7, and therefore must demonstrate that it had been 
doing business as defined in the regulations since March 2016. The Petitioner stated on the Form 1-
140 that it was established "5/2016." It provided a copy of its Certificate of Formation filed with the 
Texas Secretary of State on April 7, 2016, eleven months prior to filing the petition, and a commercial 
lease agreement dated May 16, 2016. The Petitioner stated on the Form 1-140 that it had six employees 
and gross annual income of approximately $278,000, but did not provide supporting evidence 
corroborating that the company was staffed and occupying the premises described in the lease 
agreement, nor did it provide supporting evidence showing that it was operating as an importer and 
distributor of food products as stated in the petition. 
In the NOID, the Director emphasized that the initial evidence that the Petitioner had been established 
for only 11 months at the time of filing, and therefore did not support a determination that the company 
had been doing business for one year as required. The Director further noted that, although the 
Petitioner submitted a lease agreement, the address provided on that agreement j I 
.________ __.Texas) did not match the address provided on the Form 1-140. Specifically, the 
Petitioner provided a mailing address i~ !Texas and indicated that this address would also 
serve as the Beneficiary's work location. 
The Director also provided notice that USCIS had determined the Texas address the 
Petitioner provided was for a UPS Store location and therefore could not serve as the Petitioner's 
commercial location or as the Beneficiary's worksite. The Director further advised the Petitioner that 
USCIS had conducted an administrative investigation and had contacted the individual who had 
ostensibly executed the submitted commercial lease agreement on behalf of the lessor, I II IThis individual "denied executing the contract and further stated that he 
was not familiar with either the petitioner, the beneficiary or any related offices or employees of the 
petitioner." As noted, the Petitioner did not respond to the NOID. Accordingly, the Director 
determined that it did not establish that it had been doing business for at least one year at the time of 
filing, as required by 8 C.F.R. § 204.5(j)(3)(i)(D). Further, the Director denied the petition with a 
I I
5 
finding of willful misrepresentation of a material fact based on the unrebutted derogatory information 
regarding the Petitioner's lease agreement and addresses. 
On appeal, the Petitioner asserts that the company is "fully operational" and submits evidence that 
includes its corporate bank statements for 2021 and 2022, evidence that it maintained liability 
insurance during this same period, and a copy of its unaudited profit and loss statement for 2022. As 
noted, the Petitioner has been put on notice of a deficiency in the evidence, was given an opportunity 
to respond to that deficiency, and did not avail itself of that opportunity. We will not accept evidence 
offered for the first time on appeal. Soriano, 19 I&N Dec. 765; Obaigbena, 19 I&N Dec. 533. 
The Petitioner also appears to suggest that the regulations governing automatic revocation and job 
portability, already discussed above, exempt it from establishing that it meets the regulatory 
requirement at 8 e.F.R. § 204.5(j)(3)(i)(D). The Petitioner has misconstrued the applicability of these 
regulations. Even if the record reflected that the Beneficiary had filed a Form I-485 Supplement J 
with users, the Petitioner would still need to establish that this petition was eligible for approval at 
the time of filing and until the beneficiary's adjustment of status application had been pending for 180 
days under 8 e.F.R. § 245.25(a)(2)(ii)(B)(2). There is no provision that would exempt the Petitioner 
from establishing that it had been doing business for at least one year. As noted by the Director, the 
Petitioner was incorporated only eleven months prior to the filing of this petition and did not satisfy 
this requirement. The Petitioner has not submitted evidence to overcome this conclusion. 
Finally, the Petitioner's president briefly addresses the Director's separate finding that the Petitioner 
had willfully misrepresented material facts relevant to this eligibility requirement. Specifically, he 
states that "[ a ]11 the supporting documents I have submitted were true and correct regarding my lease 
contract. Our business is no longer leasing the commercial property in question." Regarding the 
Petitioner's use of a UPS Store address on the Form I-140, the Petitioner asserts that the I ~exas 
address was "a mailing address" that the Petitioner also no longer uses. 
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 benefit to which one is not entitled. Matter ofKai Hing Hui, 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 Matter ofTijam, 22 
I&N Dec. 408,425 (BIA 1998); Matter ofHealy 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 m a proper 
determination that he be excluded." Matter ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, 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 ofM-, 6 I&N Dec. 149 (BIA 1954); 
Matter ofL-L-, 9 I&N Dec. 324 (BIA 1961 ); Matter ofKai Hing Hui, 15 I&N Dec. at 288. 
As explained in the NOID, a users administrative investigation revealed that the Petitioner submitted 
a lease agreement in support of the petition that was ostensibly signed by the Beneficiary ( on behalf 
6 
of the Petitioner) and by another individual on behalf of the landlord, who denied any knowledge of 
the agreement or knolledgel of the Petitioner or Beneficiary. While the Petitioner now claims that it 
no longer leases the Texas premises described in the agreement, this explanation does not 
overcome the unrebutted derogatory information in the record or the Director's determination that the 
lease agreement was not a legitimate document that truly and correctly described the Petitioner's 
commercial location. The Petitioner's maintenance of a commercial premises from which to operate 
its trading company is material to the issue of whether it was doing business. Therefore, we will not 
disturb the Director's finding of willful misrepresentation. 
D. Reserved Issues 
As discussed above, the Petitioner has not established that it has a qualifying relationship with the 
Beneficiary's claimed foreign employer, that it has the ability to pay the proffered wage, and that it 
was doing business for at least one year at the time it filed the petition, nor has it overcome the 
Director's separate finding of willful misrepresentation. As these issues are dispositive of the appeal, 
we will not address the additional grounds for denial, specifically whether the Petitioner established 
that the Beneficiary was employed abroad, and would be employed in the United States, in a 
managerial or executive capacity, and whether he was employed abroad for at least one year in the 
three years preceding the filing of the petition. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
(finding it unnecessary to analyze additional grounds when another independent issue is dispositive of 
the appeal). 
III. CONCLUSION 
The record does not demonstrate that the Petitioner and Beneficiary satisfy the eligibility 
requirements 
for the requested multinational manager or executive classification. Accordingly, the appeal will be 
dismissed for the above stated reasons, with each considered as an independent and alternate basis for 
the decision. 
ORDER: The appeal is dismissed. 
7