dismissed EB-1C Case: Food Import And Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re: 2657216 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 17, 2020 
Form I-140C, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a food import and distribution company, seeks to permanently employ the Beneficiary 
as its president in the United States under the first preference immigrant classification for multinational 
executives or managers. 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, concluding that the record did not 
establish, as required , that: ( 1) the Petitioner had a qualifying relationship with the Beneficiary's 
former foreign employer; (2) the Petitioner was doing business in accordance with the regulations; 
and (3) the Beneficiary would act in a managerial or executive capacity in the United States. In 
addition, the Director concluded that the Petitioner and Beneficiary willfully misrepresented material 
facts related to his claimed foreign employment. 
The Petitioner later appealed the decision and we dismissed the appeal. We withdrew the Director's 
determination that the Petitioner was not doing business, but affirmed the remaining grounds for 
denial. In addition, we concurred with the Director's determination that the Petitioner and Beneficiary 
willfully misrepresented material facts and noted additional willful misrepresentations on the part of 
both. 
The Petitioner later filed a motion to reopen and a motion to reconsider. We dismissed the motion to 
reconsider concluding that the Petitioner did not articulate sufficient reasons supported by pertinent 
law to demonstrate that our previous appeal decision was in error. In addition, we detennined that the 
Petitioner did not submit new evidence to establish that our previous decision was incorrect. Under 
the current motion, the Petitioner submits additional assertions and evidence and contends that "the 
director and the AAO have unreasonably and incorrectly denied our application and motion." 
Upon review, we will dismiss the motion to reopen and the 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 
application oflaw or U.S. Citizenship and Immigration Services (USCIS) 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). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner provides additional evidence specific to the Beneficiary's claimed foreign 
employment. However, upon review, we conclude that the Petitioner has not submitted sufficient new 
facts supported by affidavits or other documentary evidence to warrant the reopening of this matter. 
8 C.F.R. § 103.5(a)(2). 
1. Background 
We note that this decision is limited to addressing whether we correctly dismissed the Petitioner's 
previous motion to reopen and motion to reconsider. In our previous decision, we dismissed the 
Petitioner's motion to reconsider concluding that it did not establish that our previous appeal decision 
was based on an incorrect application oflaw or policy. 8 C.F.R. § 103.5(a)(3). 
In addition, we addressed additional evidence submitted by the Petitioner on motion and affirmed our 
previous conclusion that the Petitioner and Beneficiary had willfully misrepresented material facts 
specific to his claimed qualifying foreign employment withl ., 0 0 ,I 
I I from September 2001 to July 2013. We stated that the Petitioner had not disclosed 
this claimed foreign employment to Department of State officials during consular interviews and did 
not sufficiently respond to these discrepancies addressed in a notice of intent to deny/request for 
evidence (NOID/RFE) we issued when adjudicating the appeal. 
We further addressed the Petitioner's assertion on motion that the Beneficiar 
with bothl I an_.__ _______________________ __. 
I I The Petitioner asserted that the Beneficiary's joint employment with these two companies 
during this time explained why he reported I I as his foreign employer in consular interviews. 
However, we determined that this assertion lacked credibility since the Petitioner and Beneficiary did 
not previously discuss this claimed joint employment nor was this information reflected in his resume 
or G-325A, Biographic Information, both submitted in July 2014. In fact, we concluded that submitted 
documentation specific tol !reflected additional discrepancies; for instance, we noted that the 
foreign employer's articles of association postdated its apparent dissolution in provided 
documentation. In sum, we concluded that the Petitioner, despite provided with several opportunities, 
did not submit complete, consistent, and verifiable evidence of the Beneficiary's asserted foreign 
employment with! I for the required one year period. 
Further, we also confirmed our previous conclusion on appeal that the Beneficiary had willfully 
misrepresented material facts related to the nature and purpose of his travel when applying for 
nonimmigrant tourist visas in August 2012 and July 2013. We discussed submitted documentation 
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reflecting that the Beneficiary did not only travel to New York as claimed to consular officials, but 
lived at a residence on I I inl I Virginia, as asserted in support of the current 
petition. We again pointed to the NO ID/RFE we issued when adjudicating the appeal, which requested 
that the Beneficiary explain lhy he clrmed to reside for more than one year at a commercial property 
located onl lin Virginia from August 2012 to December 2013. We indicated 
that in support of the previous motion, the Petitioner acknowledged that the Beneficiary was living 
illegally at a commercial property onl I during 2012 and 2013 and willfully misrepresented 
in response to our NOID/RFE that he had been residing at a separate property onl I in 
I ~uring this same time. We determined that the Beneficiary had expressly acknowledged these 
misrepresentations; therefore making them willful, and concluded that they were material as he 
indicated he made these statements to evade questions regarding his true activities in the United States. 
In addition, in our last decision, we affirmed our previous conclusion on appeal that the Petitioner had 
willfully misrepresented its ownership. We stated that the Petitioner again did not sufficiently respond 
to discrepancies related to its ownership discussed in the NOID/RFE we issued when adjudicating the 
appeal. For instance, we indicated that the Petitioner claimed that it was a 50/50 joint venture between 
~-------------~ and the Beneficiary's claimed foreign employer. However, we 
stated that when confronted with records from the Commonwealth of Virginia reflecting that 
I Is corporate status had been terminated, the Petitioner did not indicate why it had not 
previously disclosed this fact. We noted that in response to the NOID/RFE and on motion the 
Petitioner submitted corporate documenrtion guTtionably post-dated to December 2012 reflecting 
the transfer of shares from the terminated to I l We concluded that this new evidence 
did not overcome our previous conclusion that the Petitioner had willfully misrepresented its 
ownership. 
Furthermore, we concluded that the Petitioner had provided no new evidence to address questions 
raised as to whether a qualifying relationship existed between it and the Beneficiary's foreign 
employer. We determined that it had submitted conflicting evidence as to the Petitioner's ownership; 
for instance, it acknowledged that shares inl I had not been transferred in December 2012, as 
claimed, but done so much later in postdated fashion only after it realized that a terminated company 
could not own shares. We concluded that this left material uncertainty as to whether the Petitioner's 
ownership was as claimed at the time the petition was filed in July 2014. Lastly, we also concluded 
that the Petitioner had provided no new evidence to address our conclusion that it did not establish 
that the Beneficiary would act in an executive capacity in the United States. 
Now, on motion, the Petitioner provides an employment verification letter dated in September 2018 
from the Beneficiary's claimed foreign employer,! I stating that the Beneficiary was 
employed "as overseas investment manager from 2001 to 2013 and overseas branch manager USA 
from 2013 to the present." This letter farther includes an affidavit from a "Former Director of 
Executive ~-Employment Bureau of~-~--------,..... stating that the Beneficiary 
worked forl__J from 1994 to 2001 as marketing and sales manager and that "this company was 
officially terminated in 2002." In addition, the Petitioner provides a "Recorded List for Employees 
Who Have Signed Employment Contract" document listing the Beneficiary as having signed a contract 
to extend his foreign employment wit~ Ion January 5, 2011 for the period January 2, 2011 
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through December 31, 2013. In addition, the Petitioner provides two articles of association documents 
specific tol I 
2. Analysis 
In order to grant the motion to reopen in this matter, the Petitioner would have to submit new evidence 
to overcome each basis of our previous dismissal of its appeal, as well as new evidence to overturn 
each instance we determined that it and the Beneficiary had willfully misrepresented material facts. 
However, as discussed, the Petitioner has only provided new evidence specific to the Beneficiary's 
~mployment, as well as articles of association specific to one of his claimed foreign employers, 
L___JAs such, the Petitioner has not provided new evidence to address: 1) our conclusion that the 
Beneficiary had willfully misrepresented the nature and purpose of his travel when applying for 
nonimmigrant tourist visas in August 2012 and July 2013, 2) that it willfully misrepresented its 
ownership, 3) that it had not established a qualifying relationship with the Beneficiary's former foreign 
employer, and 4) that it had not demonstrated that the Beneficiary would act in an executive capacity 
in the United States. Therefore, because the Petitioner has not submitted new evidence to address and 
overcome all the bases of dismissal and each of our findings of willful misrepresentation addressed in 
our previous decisions, it has not met the requirements of a motion to reopen. 
Regardless, we conclude that the new evidence specific to the Beneficiary's claimed foreign 
employment does not overcome our previous conclusion that the Petitioner and Beneficiary willfully 
misrepresented facts specific to his claimed foreign employment with I I In fact, the 
evidence submitted by the Petitioner on motion only leaves further question as to its assertions 
regarding the Beneficiary's qualifying foreign employment. For instance, in support or the pTvious 
motion, the Petitioner stated that the Beneficiary was asked by his brother to oversee while 
employed by I O O I thus explaining why he disclosed I I as his foreign employer in 
consular interviews. 
However, the evidence submitted on motion is in apparent dire, · ct with its previous contention 
that the Beneficiary was jointly employed byl I and as the rovided affidavit from 
the "Former Director of Executive Office of Emplolfent Bureau of 
indicates that the Beneficiary was employed b~--~from 1994 to 2001 and states that this company 
was "officially terminated" in 2002. As such, this document only appears to reinforce that the 
Petitioner and Beneficiary continue to willfully misrepresent material facts. For instance, in su~ 
~revious motion, the Petitioner asserted that the Beneficiary was jointly employed withl__J 
L__Jandl I during the time of his consular interviews in 2012 and 2013, but this new document 
states that his employment ended in 2001 and thatl lwas terminated in 2002. 
Further, we do not find that a letter from the Beneficiary's claimed foreign employer dated more than 
four years after the date the petition was filed acts as objective and contemroraneous evidence of the 
Beneficiary's one year of required foreign employment with[ In addition, although we 
acknowledge the document submitted on motion listing the foreign employer's prior employment 
contracts, the Petitioner does not explain why this documentation was not previously submitted in 
support of the Beneficiary's claimed foreign employment despite its numerous opportunities to 
address discrepancies on the record as to this issue. It is also noteworthy that this evidence does not 
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include the Beneficiary's actual employment contract specific to 2011 through 2013, a discrepancy 
we noted in our previous motion denial decision. 
For the foregoing reasons, the Petitioner has not provided sufficient new evidence to establish that we 
erred in dismissing the previous motion. 
B. Motion to Reconsider 
The Petitioner has also not provided sufficient reasons to reconsider our previous decision to dismiss 
its first motion to reopen and motion to reconsider. The Petitioner must demonstrate that our previous 
decision was an incorrect application or law or policy and incorrect based on the submitted evidence; 
and demonstrate the Beneficiary's eligibility for the requested benefit. 
As a preliminary matter, the Petitioner has not demonstrated the Beneficiary's eligibility for the 
requested benefit. As discussed, we dismissed the Petitioner's appeal concluding that it did not 
establish a qualifying relationship between it and the Beneficiary's claimed foreign employer and 
determined that he would not act in an executive capacity in the United States. 
With respect to the former issue, the Petitioner states now on motion that "the joint venture company 
is in fact existing and keeps doing business as of today ... [ and] the existing fact that the joint venture 
company keeps doing business with[out] any interruption should prove the truth." However, these 
statements do not sufficiently address the specifics of our previous conclusions with respect to 
qualifying relationship. As such, we will affirm our previous conclusion as to this issue. Likewise, 
with respect to the Beneficiary's proposed executive capacity in the United States, the Petitioner 
asserts that "now six years has passed, things changed every day, the Beneficiary had understaffed the 
company to minimize cost and maintain satisfactory revenue, which just proves that the Beneficiary 
is executively capable of running a successful company." Again, these statements do not directly 
address our previous determinations on this issue or demonstrate how they were in error. Therefore, 
for these reasons, the Petitioner has not established the Beneficiary's eligibility; and as such, we cannot 
grant the motion to reconsider. 
In addition, the Petitioner has not set forth sufficient reasons to demonstrate that we erred in our 
previous determinations that it and the Beneficiary willfully misrepresented material facts. As 
discussed in our previous decisions, the Beneficiary willfully misrepresented the nature and purpose 
of his travel when he applied for nonimmigrant tourist visas in August 2012 and July 2013. We 
discussed records indicating that the Beneficiary told consular officials that he would only stay in New 
York, while evidence submitted with the current petition reflected that he lived at a commercial 
property on! I inl l Virginia. Further, we concluded in our previous decision that 
the Beneficiary willfully misrepresented his place of residence as I I inl l as opposed 
tol I in response to our NOID/RFE. 
In support of the current motion, the Petitioner states the following with respect to the Beneficiary's 
misrepresentations to both to consular officials and us regarding his places of residence: 
To [the Beneficiary], English is the hard part for his communication, Again [sic] if this 
is considered misrepresentation, he has to admit but he never intended or willfully to 
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misrepresent anything in order to hide something evil or illegal. Besides, it was also 
true fact that he got to spend [a] few days in New York anyways. And also as we stated 
earlier, the Beneficiary just left all information with the consulate unchanged for the 
coming visa renewal in order to avoid extra explanation. 
First, we note that this statement on the part of the Petitioner does not directly address our previous 
conclusions that the Beneficiary willfully misrepresented facts related to his residences, nor does it 
discuss how our conclusions as to this issue were inconsistent with law or policy. Regardless, it 
appears that the Petitioner contends that the Beneficiary's misrepresentations as to his residence to 
consular officials, and us, were not willful, since they did not "hide something evil or illegal." 
However, the Petitioner's statements on motion clearly indicate that the Beneficiary's 
misrepresentations as to his place of residence were indeed willful, as it states that he did so "in order 
to avoid extra explanation." 1 Therefore, we affirm our previous conclusion that the Beneficiary 
willfully misrepresented the nature and purpose of his travel when he applied for nonimmigrant tourist 
visas in August 2012 and July 2013. 
Likewise, the Petitioner does not sufficiently address on motion how we erred in concluding that it 
willfully misrepresented facts related to its ownership. On motion, the Petitioner states that it relied 
on counsel who it states told it th~ had "terminated naturally" and advised that shares could 
be transferred fro~ I to "as we originally preferred" in a postdated fashion. The 
Petitioner states that it "never inten e or attempted to hide anything from [United States Citizenship 
and Immigration Service] USCIS ... [as] it is simply caused by ignorance as we explained on last 
motion." 
In our previous decision, we discussed that the Petitioner did not disclose the full truth as to its ownership 
in response to our direct inquiry in our appeal RFE/NOID, but merely submitted documentation 
indicating the transfer of shares froml ltol lin 2012, which it now acknowledges never 
happened. We stated that this reflected the Petitioner's continued attempt to insulate us from the whole 
truth. The Petitioner does not sufficiently address this on motion, but appears to blame these apparent 
willful misrepresentations as to its ownership on former counsel. 2 The Petitioner's contentions on 
1 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 of Kai 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 of Tijam, 22 I&N Dec. 408, 425 (BIA 1998); Matter of Healy 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 in a proper determination that he be excluded." Matter of Ng, 
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 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. 
2 The Board oflmmigration Appeals (the Board) established a framework for asserting and assessing claims of ineffective 
assistance of counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (I st Cir. 1988). 
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motion do not demonstrate how we erred in our previous conclusion that it willfully misrepresented facts 
with respect to its ownership. As such, we affirm our previous conclusion that the Petitioner willfully 
misrepresented facts as to its ownership. 
Lastly, we acknowledge that the Petitioner also provides additional assertions with respect to the 
Beneficiary's foreign employment on motion. However, as we have already affirmed the findings of 
willful misrepresentation specific to the Petitioner and Beneficiary, we decline to again address this issue 
that we have thoroughly addressed in two prior decisions and in the previous section of this decision. 
As such, we affirm our previous conclusions that the Petitioner and Beneficiary willfully misrepresented 
facts as to his foreign employment. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
of our prior decision. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
First, Lozada sets forth the following threshold documentary requirements for asse1ting a claim of ineffective assistance: 
• A written affidavit of the Petitioner attesting to the relevant facts. The affidavit should provide a detailed 
description of the agreement with former counsel (i.e., the specific actions that counsel agreed to take), the specific 
actions actually taken by fonner counsel, and any representations that former counsel made about his or her 
actions. 
• Evidence that the Petitioner informed former counsel of the allegation of ineffective assistance and was given an 
opportunity to respond. Any response by prior counsel ( or report of former counsel's failure or refusal to respond) 
should be submitted with the claim. 
• If the Petitioner asserts that the handling of the case violated former counsel's ethical or legal responsibilities, 
evidence that the Petitioner filed a complaint with the appropriate disciplinary authorities ( e.g., with a state bar 
association) or an explanation why the [applicant/petitioner] did not file a complaint. 
Id. at 639. These documentary requirements are designed to ensure we possess the essential information necessary to 
evaluate ineffective assistance claim and to deter meritless claims. Id. Allowing former counsel to present his or her 
version of events discourages baseless allegations, and the requirement of a complaint to the appropriate disciplinary 
authorities is intended to eliminate any incentive for counsel to collude with his or her client in disparaging the quality of 
the representation. We may deny a claim of ineffective assistance if any of the Lozada threshold documentary requirements 
are not met. Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000). In this matter, the Petitioner submits none of the 
documentary evidence required to establish that its misrepresentations related its ownership were due to ineffective 
assistance of counsel. 
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