dismissed EB-1C Case: Kitchen Equipment

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 7, 2024 In Re: 22678724 
Appeal of Texas Service Center Decision 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, an exporter of kitchen equipment, sought to permanently employ the Beneficiary as its 
vice president under the first preference immigrant classification for multinational executives or 
managers. See Immigration and Nationality Act (the Act) section 203(b)(1 )(C), 8 U.S.C. 
§ l 153(b )(l)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in a managerial or executive capacity. 
The Director of the Texas Service Center approved the petition but then revoked that approval, 
concluding that the Petitioner had not established: (1) a qualifying relationship between the claimed 
foreign and U.S. employers; (2) the Petitioner's ability to pay the Beneficiary's proffered wage; (3) 
that the Beneficiary's foreign and U.S. employers continue doing business; (4) that the Beneficiary 
was employed abroad in a managerial or executive capacity; and (5) that the Petitioner would employ 
the Beneficiary in the United States in a managerial or executive capacity. The Director also 
concluded that the Petitioner and the Beneficiary had willfully misrepresented material facts . The 
Beneficiary filed a combined motion to reopen and reconsider, which the Director dismissed. 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 of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. We will also withdraw the finding of willful misrepresentation. 
I. LAW 
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)(l)(C) of the Act. 
The Form I-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). 
The approval of a petition may be revoked at any time for good and sufficient cause. Section 205 of 
the Act, 8 U.S.C. § 1155. By itself, the director's realization that a petition was incorrectly approved 
is good and sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. See 
Matter o_fHo, 19 I&N Dec. 582, 590 (BIA 1988). 
A motion to reopen must state new facts and be supported by 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 of law or policy and that the decision was inc01rect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
The petitioning U.S. employer filed an immigrant petition on the Beneficiary's behalf in August 2013. 
The Director of the Texas Service Center approved the petition in January 2014, but issued a notice of 
intent to revoke (NOIR) that approval in May 2017, citing five evidentiary deficiencies. The Director 
revoked the approval of the petition in October 2021, stating that the Petitioner had not overcome any 
of the issues raised in the NOIR. The Director also found that the Petitioner and the Beneficiary has 
willfully misrepresented material facts. In December 2021, the Beneficiary filed a motion to reopen 
and reconsider, contesting the finding of misrepresentation but not the determination of ineligibility. 1 
The Director dismissed the combined motion in January 2022. The matter is now before us on appeal. 
Because the Director did not reopen the proceeding or reconsider the decision to revoke the approval 
of the petition, the matter before us on appeal is the dismissal of the combined motion, not the 
underlying revocation. Therefore, our appellate review is limited to the question of whether the 
Director properly dismissed the motion. 
As noted above, the Director cited five different grounds for revocation. On motion and on appeal, 
the Beneficiary does not directly address or contest all of those grounds. For instance, the 
Beneficiaiy's brief does not mention or dispute the Director's determination that the Petitioner had 
not shown its ability to pay the Beneficiary's proffered wage from the petition's filing date until the 
Beneficiaiy becomes a lawful pe1manent resident, as required by 8 C.F.R. § 204.5(g)(2). By not 
raising these issues, the Beneficiary has abandoned them. See Matter ofR-A-M-, 25 I&N Dec. 657, 
658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue addressed in an adverse 
decision, that issue is waived). See also Sepulveda v. US. Atty Gen., 401 F.3d 1226, 1228 n. 2 (11th 
Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's 
claims were abandoned as he failed to raise them on appeal to the AAO). 
1 The petitioning U.S. employer dissolved in 2017. The Director determined that the Beneficiary has standing to file an 
appeal in this matter in accordance with Matter of V-S-G-, Inc. Adopted Decision 2017-06 (AAO Nov. 11, 2017). We 
further note that the record identifies the Beneficiary as a shareholder of the petitioning entity. The Beneficiary's appeal 
essentially duplicates the earlier combined motion, with the addition of further exhibits such as new affidavits. 
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By waiving or abandoning some of the stated grounds for revocation, the Beneficiary has, in effect, 
conceded that he is not eligible for the benefit sought. For this reason, we will dismiss the appeal. 
But the Beneficiary has contested a separate finding that he and the Petitioner willfully misrepresented 
material facts regarding his employment history. We will withdraw that finding. 
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." Matter of S- and B-C-, 9 I&N Dec. 436, 447 (BIA 
1961 ). 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. Sergueeva v. Holder, 324 Fed. Appx. 76 (2d Cir. 2009) ( citing Matter ofKai Hing 
Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). Material misrepresentation requires only a false statement 
that is material and willfully made. See 9 FAM 40.63 N2; see also Matter of Tijam, 22 I&N Dec. 408, 
424 (BIA 1998) (en bane) (Rosenberg, concurring). The term "willfully" means knowing and 
intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are 
otherwise. See Matter ofHealy and Goodchild, 1 7 I&N Dec. 22, 28 (BIA 1979). 
An individual found to have willfully misrepresented material facts in seeking immigration benefits is 
pemrnnently inadmissible into the United States unless the individual qualifies for a waiver of 
inadmissibility. Section 212(a)(6)(C)(i) and (iii) of the Act, 8 U.S.C. § l 182(a)(6)(C)(i) and (iii). 
When making an inadmissibility determination, USCIS officers should keep in mind the severe nature 
of the penalty for fraud or willful misrepresentation. See generally 8 USCIS Policy Manual J.2(E), 
https://www.uscis.gov/policy-manual. 
The Director's allegation of misrepresentation lacks key details. In the NOIR, the Director stated: 
The petitioner and 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 business letters, organizational charts, invoices, and 
photographs in an attempt to classify the beneficiary for a benefit he was ineligible for, 
which misrepresents a material fact. 
This vague and general statement does not convey any specific information as to how the Petitioner 
and the Beneficiary misrepresented the Beneficiary's employment. Other portions of the Director's 
notices refer to inconsistent descriptions of the Beneficiary's duties, and a footnote in the revocation 
notice alleges discrepancies in the dates of the Beneficiary's claimed employment abroad. The 
Director did not specify how these discrepancies were material to the proceeding or establish how they 
appeared to constitute willful misrepresentation rather than inadvertent error. 
Elsewhere in the NOIR, the Director noted various perceived discrepancies, such as organizational 
charts that contain differing information, but the Beneficiary sought to address those discrepancies, 
for example by asserting that the structure of the company had changed after the preparation of the 
first version of the chart. Discrepancies of this kind are not necessarily or presumptively hallmarks of 
willful misrepresentation in the absence of further derogatory information. Because the discussion of 
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the finding of misrepresentation itself lacks detail, we cannot determine whether the Director based 
the finding on discrepancies within the record, contradictory information from outside the record, or 
a combination of both. 
Given the severe consequences for willful misrepresentation of material facts in an immigration 
proceeding, USCIS must explain in detail which claims and evidence USCIS believes to be false, and 
how USCIS arrived at that conclusion. The NOIR and the revocation notice, which basically repeats 
the language in the NOIR, do not provide such an explanation. 
In the course of future proceedings involving this beneficiaiy, USCIS, following proper notice and an 
opportunity to respond, may enter a finding of willful misrepresentation of a material fact if additional 
evidence and information should surface to warrant such a finding. But in the case now before us, the 
general assertion that the Petitioner and the Beneficiary misrepresented the Beneficiary's employment 
history cannot suffice. Therefore, the finding of willful misrepresentation of material facts, as stated 
in the NOIR and the revocation notice, cannot stand. 
III. CONCLUSION 
We will dismiss the appeal, because the Beneficiary's combined motion to reopen and reconsider did 
not fully address the substantive grounds for revocation, and, therefore, the Beneficiary did not 
overcome all of those grounds. But we withdraw the Director's finding that the Petitioner and the 
Beneficiary willfully misrepresented material facts regarding the Beneficiary's employment history. 
ORDER: The appeal is dismissed. 
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