dismissed EB-1C Case: Food Service

U.S. Citizenship 
and Immigration 
Services : 
MATTER OF C- INC. 
' 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15, 2019 
· MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a pizzeria, seeks to permanently employ the Beneficiary as its executive manager 
under the first preference immigrant classification for multinational executives or managers. 
Immigration and Natioriality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign e~ployee 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; (3) the Beneficiary will be employed in the United States in a managerial or executive 
capacity; and (4) the fqreign entity is doing business. The Director also found that the Petitioner 
willfully misrepresented the ownership of the U.S. company in order to falsely indicate that a qualifying 
relations_hip exists between the Petitioner and the Beneficiary's.former foreign employer. 
We summarily dismissed the Petitioner's appeal, finding that the Petitioner had not identified ariy 
basis for the appeal.. The matter is now before us on a combined motion to reopen and reconsider. 
Upon review, we will deny the motion to reconsider; however, the proceeding will be reopened for 
the limited purpose of reviewing the finding of willful misrepresentation of a material fact. We will 
not disturb the denial of the petition. . 
On motion, the Petitioner shows that it submitted an appellate brief that w~ did not consider. The 
Petitioner does not cm1test the grounds for deni~l of the petition, but asserts that any incorrect 
inforrn.ation about the company's ownership was inadvertent rather than deliberate. 
A motion to reconsid,er must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at 
the time of the decision. 8 CYR. § I 03 .5( a)(3 ). A motion to reconsider must be supported by a 
pertinent precedent or: adopted decision, statutory or regulatory provision, or statement of U.S. 
Citizenship and linmigFation Services or Department of Homeland Security policy. We must deny a 
motion that does not meet applicable requirements. 8 C.F.R. § 103.5(a)(4). 
Matter ofC- Inc. 
The regulations require isummary dismissal of an appeal when the_ appellant does not identify 
specifically any· erroneoµs conclusion of law or statement of fact for the appeal. See 8 C.F.R~­
§ 103.3(a)(l)(v). The party filing the appeal may, however, request additional time to submit a brief. 
See 8 C.F.R. § 103.3(a)(2)(vii). In such a case, the regulations require the Petitioner to submit the 
brief directly to the Administrative Appeals Office (AAO). See 8 C.F.R. § 103:3(a)(2)(viii). 
The Director denied the petition on December l, 201.7. The Petitioner filed its appeal on December 
29, 2017. The appeal did not include an explanation for the basis for the appeal, but the Petitioner 
checked a box on Form 1-290B, Notice of Appeal or Motion: "My brief and/or additional evidence 
will be submitted to the AAO within 30 calendar days of filing the appeal." 
We summarily dismissed the appeal on May 25, 2018, stating: "we have not recei~ed anything 
further from the Petitioner." On motion,· the Petitioner disputes this finding, and submits a 
supplementary statement, along with evidence that the Petitioner mailed the brief on January 25, 
2018. . 
The Petitioner has established that it submitted a supplement to the appeal, but not that we erred by 
summarily dismissing the appeal. 
As cited above, 8 C.F.R. § 103.3(a)(2)(viii) requires submission of appellate briefs directly to the 
AAO. The instructions to Form 1-290B stated, on page 6: "Any brief and/or additional evidence 
submitted after the initial filing of Form I-2908 must be submitted directly to the ~AO." The 
instructions then provided directions on where to find the AAO's current mailing address. Every 
document submitted to ,the Departrpent of Homeland Security (which includes the _AAO) must 'be 
submitt_eg in accordance with the form instructions. See 8 C.F.R. § 103.2(a)(l). 
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In this instance, the Petitioner did not file the supplement in accordance with the form instructions. 
Instead of submitting the supplement directly to the AAO, as instructed, the Petitioner sent the 
material to the Texas Service Center, which received the brief on .January 29, 2018. While the 
original brief has since made its way into the file pertaining to this petition, the Petitioner sent the 
appeal statement to the wrong address which delayed its incorporation into the record. Therefore, 
there was no error in summarily dismissing the appeal. 
Even if we were to full_y grant this motion, we note that the Petitioner's statement would not have 
resulted in approval of the petition. The Petitioner states that ir "accepts that it ·did not establish 
eligibility for the benefit sought," and therefore we need not discuss the merits of the underlying 
petition. On appeal,. and again on motion, the Petitioner seeks only a reversal of the finding that it 
willfully misrepresented mat,erial facts, :j . . . . . . · , 
Misrepresentation of a matenal fact may lead to multiple consequences m 1mm1grat1on proceedmgs. 
First, as an evidentiary matter, the misrepresentatioi may impact the review and adjudication of the 
visa petition_. or immigration application. Second, (a material misrepresentation that is found to be 
willful under section 212(a)(6)(C) of the Act may! make an alien ineligible to receive a visa and 
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Matter ofC- Inc. 
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ineligible to be admitted to the United States. See Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). 
Finally, a finding of willful misrepresentation of a niaterial fact may lead to-criminal penalties. See 
18 U.S.C. §§ 1001, 154~; see also US v. O'Connor; 158 F. Supp. 2d 697 (E.D. Va. 2001). 
Due to the consequences of 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 Matter ofShirdel, 19 I&N Dec. 33, 35 (BIA 1984). 
In this instance, the Director concluded that "the petitioner is wholly owned by the beneficiary and it 
does. not have any foreign affiliates," and that the Petitioner misrepresented the nature of the 
company ''by submitting a petition portraying itself as a multinational organization." The ownership 
of· the company is material because the petitioning U.S. employer must have a qualifying 
relationship with the Ben~ficiary's former foreign employer as a parent, subsidiary, or affiliate. See 
8 C.F.R. § 204.5(j)(3)(i). 
The. Petitioner initially claimed to be a subsidiary of the foreign employer. The Petitioner did not 
show that the foreign employer is a legal entity on its own. Rather, permits and bank documents 
indicate that an individual in the Czech Republic, with the initials M.D., personally operated the 
business, esse°:tially as a sole proprietor not legally separate from the business. . . 
As for the petitioning U.S. entity, its articles of incorporation authorized the issuance of 1000 shares; 
copies of share certificates dated 2003 indicated that M.D. and the Beneficiary each held 500 shares. 
This shared ownership would have made the Petitioner an affiliate, rather than a subsidiary, of the 
Czech employer. See 8 C.F.R. § 204.5(j)(2) for the definitions of the relevant terms.• 
The Director· noted that the Petitioner's income tax returns identified the Beneficiary as the sole 
shareholder, and, since 2o"l 0, the Petitioner has identified itself as an S corporation, a corporate 
structure that has significant restrictions on foreign ownership. The Director concluded that the 
Petitioner had misrepresented its ownership to secure immigration benefits for the Beneficiary. 
In the appellate brief, resubmitted on motion, the Petitioner asserts that it changed its corporate 
structure on the advice ·of its accountant, without considering the effect this change would have on 
the Beneficiary's eligibility for immigration benefits. The accountan_t corroborates this claim in a 
separate affidavit. The accountant states in the affidavit that he advised the Petitioner to change its 
· "structure from a 'C' corporation to an 'S' corporation to save taxes and ~implify accounting," but 
he does not specifically address the company's ownership. 
The record contains no direct evidence to show when, or if, shares in the petitioning entity changed 
hands after the company's founding in 2003. By filing IRS Form 1120S, U.S. Income Tax Return 
for an S corporation, the Petitioner made certain representations to the Internal Revenue Service, but 
the form itself is not first-han.d evidence of the company's ownership. · We note that a third party 
prepared the tax returns, and it is not clear how much the preparer directly knew about the 
company's ownership. · 
Matter ofC- Inc. 
We also note the Petitioner's submission of corporate filings with the State of Florida, which 
continued to identify M.D. as a director of the petitioning company as of 2014 (the last year 
represented in the initial filing). Like the tax returns, these filings are not direct evidence of 
ownership, but they are consistent with M.D. 's own assertion that M.D. has maintained part 
ownership of the petitioning entity. 
The discrepancy between the state corporate filings and federal tax filings is of legitimate concern, 
but we do not have enough evidence to determine that the federal tax returns are more accurate than 
the state corporate filings. · 
The record contains inconsistent information about the Petitioner's ownership, but the evidence of 
record does not warrant the finding that the Petitioner (and the Beneficiary) falsified the appearance 
of a qualifying relationship or concealed evidence of ineligibility. 
The Petitioner did not follow the required procedures to supplement its appeal, and the Petitioner has 
acknowledged that it has not established eligibility for the benefit sought. Therefore, we will not 
disturb the denial of the petition. But we agree with the Petitioner on the limited issue of willful 
misrepresentation of a material fact, and we withdraw the Director's finding to that effect. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is granted in part and denied in part. 
Cite as Matter ofC-lnc., ID# 1852756 (AAO Feb. 15, 2019) 
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