dismissed EB-1C Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-F-&F-S-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 22, 2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a freight forwarding company, seeks to permanently employ the Beneficiary as its 
logistics director 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. 
§ 1153(b )(I )(C). This classification allows a U.S. employer to pem1anently transfer a qualified foreign 
employee to the United States to \vork in an executive or managerial capacity. 
The Director of the Texas Service Center revoked the approval of the petition. concluding that the 
Petitioner did not establish, as required. that the Beneficiary was employed abroad in a managerial or 
executive capacity with a qualifying organization for at least one year in the three years preceding 
her entry to the United States as a nonimmigrant in November 2010. Further. the Director 
determined that the Petitioner and Beneficiary had willfully misrepresented material facts in regard 
to her past employment. and entered a finding of tl·aud or willful misrepresentation of a material fact. 
On appeal, the Petitioner initially asserted that the Beneficiary qualifies for the benefit sought based 
on her employment abroad with the Petitioner's Mexican affiliate and contended that the 
inconsistencies in the record do not rise to the level of fraud or misrepresentation. We issued a 
request for evidence (RFE) and have received the Petitioner· s response. The Petitioner now requests 
withdrawal of the Director's finding of willful misrepresentation, and states that it can "understand 
that this Petition possibly should not have been approved," as it "did not have a strong case for an 
Employment based visa." 
Upon de novo review, we will withdraw the Director's finding that the Petitioner and Beneficiary 
willfully misrepresented material facts. However. as the Petitioner did not overcome the primary 
basis for revocation. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the tiling 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 atliliate. Section 203(h)( I )(C) of the Act. 
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Maller olR-F-&F-S-. LLC 
The Form I-140_ Immigrant Petition for Alien Worker, must include a statement tl·om 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 beneticiary 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. employer has 
been doing business for at least one year. ,~ee 8 C.F.R. ~ 204.50)(3). 
Section 205 of the Act states: ''The Secretary of l fomeland Security may, at any time. N.H what he 
deems to be good and sutlicient cause. revoke the approval of any petition approved by him under 
section 204. Such revocation shall be effective as of the date of approval of any such petition:· 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act. the Board 
of Immigration Appeals has stated: 
In Alaller o{Estime . ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for '·good and sufficient cause'' where the evidence of 
record at the time the notice is issued. if unexplained and unrebuttcd. would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered. including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke. would warrant such denial. 
/'vfaller o(Ho. 19 I&N Dec. 582. 590 (RIA 1988) (quoting Mafler o(Estime. 19 l&N Dec. 450 (B!A 
1987)). 
II. ONE YEAR OF EMPLOYMENT ABROAD 
The primary issue to be addressed is whether the Petitioner established that the Beneficiary had one 
year of employment abroad with its foreign affiliate in the three year s preceding her entry to the 
United States to work for the Petitioner as a nonimmigrant in November 20 I 0. See 8 C.F .R. 
§ 204.5(j)(3)(i)(B). The Director's decision did not reach a discussion of v.·hether the Beneficiary's 
claimed foreign employm ent was in a managerial or executive capacity. Theret{nc, our analysis will 
focus on the evidence of the Beneficiary's one year of employment during the relevant time period, 
rather than on her employment capacity. 
A. Facts and Procedural I fistory 
In a supporting letter submitted at the time of filing. the Petitioner stated that the Beneficiary served 
as vice president of its Mexican affiliate. 
from 2007 until 2010. The Petitioner also provided evidence that the 
Beneficiary became a shareholder of the foreign entity (24.466 7%) in 2009. Jn addition. the 
Petitioner's initial evidence included the Mexican affiliate's organizational chart (dated ··2007 to 
201 0''), which depicts the Beneficiary as vice president. Finally, the Petitioner submitted a copy of 
the Beneficiary"s resume. in which she states she work ed as ··Executive Vice-president -
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Matter oj"R-F-&F-S-. LLC 
International Logistics .. for" 
2009-2010. 
in· Poland,. Mexico'" from 
The Director initially approved the Form 1-140 in August 2012. and the Beneticiary then tiled a 
Form 1-485, Application to Register Pennanent Residence or Adjust Status. in September 2012. As 
part of her application to adjust status, the Beneficiary submitted a Form G-325A. Biographic 
Information, in which she indicated that she worked as vice president of 
from September 2009 until November 20 I 0. She also listed her residences for the last five years as 
follows: 
Texas 
Mexico 
Poland 
Austria 
November 2010- present 
June 2010 to November 2010 
August 2008 to June 20 I 0 
August 2005 to .July 2008 
The Director subsequently issued a notice of intent to revoke (NOIR) the approval of the petition. 
noting the following inconsistencies with respect to the Beneticiary's toreign employment: 
• The Beneficiary's statement that she worked for the from 
September 2009 to November 20 I 0 contradicted the Petitioner's claim that she worked for 
that company tram 2007 to 20 I 0: 
• The Beneficiary's resume states she worked for m 
Poland, but the record lacked evidence that: (I ) and 
are the same company: and (2) is doing business in 
Poland. 
• The Beneficiary indicated on her Form G-325A that she resided in \1cxico for only tive 
months during her claimed period or employment with the Mexican entity. 
The Director provided the Petitioner an opportunity to submit additional evidence to support its 
claim that she worked for its Mexican affiliate for at least one year in the three-year period preceding 
her entry to the United States. 
In response to the NOIR. the Petitioner explained that the Beneticiary resided outside of Mexico 
between 2005 and 2010. but emphasized that she was not required to be physically present in 
Mexico in order to fulfill her executive duties for The Petitioner reiterated 
that the Beneficiary served as vice president of that entity from 2007 until 2010, and did not directly 
address why the Beneficiary stated on her resume and Form G-325A that she \vas employed abroad 
only from 2009 until 201 0. 
The Petitioner explained that the Beneficiary's spouse is an executive with a large \1exican 
corporation. which assigned him to work at its offices in Austria and Poland bet\veen 2005 and 20 I 0. 
It further stated its Mexican affiliate. a family ovvned and operated business. allovv'ed her to work 
remotely rather than separate from her spouse and children. The Petitioner indicated that the 
Beneficiary communicated with the \1exican entity from Poland daily via Skype and but 
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Mauer l?( R-F-&F-S-, LLC 
noted that it was unable to obtain records of these virtual meetings and IP phone calls. The 
Petitioner also identified two meetings held in Poland in 2009, and indicated that the Beneficiary 
traveled to Texas for a January 2010 management meeting. The Petitioner stated that the 
Beneticiary's role did not require direct contact with clients. direct supervision of daily operations. 
or direct daily supervision of employees. 
The Petitioner emphasized that the Beneficiary disclosed her off-site employment on both her 
resume and her G-325A and did not attempt to conceal this information. In addition. it emphasized 
that " · is simply an English translation of· · which 
contains a slight typographical error. The Petitioner confirmed that its Mexican affiliate does not 
have an office in Poland and noted that it never claimed that it did. 
The Petitioner indicated that it was submitting "documentary evidence of employment from 2009 .. 
and provided internal company documents intended to show that the Beneficiary was involved in the 
development of the foreign entity's corporate policies. establishing objectives. policies and 
procedures, evaluating and making recommendations. defining and establishing operational changes. 
revie\\·ing corporate records and reports. conferring with senior management. and reviewing activity 
reports and financial statements. However, only one of the attached plans. reports. and other 
documents identified the Beneficiary by name. 
Finally, the Petitioner submitted a letter from president of The 
Petitioner had stated in its NOIR response letter that the Beneficiary spent approximately three hours 
per week providing "Consulting to regarding new venture in Poland .. between August 2009 
and May 2010. confirmed his company"s relationship with the Petitioner" s affiliate and 
stated: 
ln the year 2009. initiates a new global stage, with the acquisition of diverse 
plans in different parts of the world. Being our trusted international 
trade service provided. we worked with one of their officers. [the BeneJiciary J. during 
the period of 2009-20 I 0. in Poland. Her expertise and assessment in 
International Trade and Globalization were very useful to us. We received her 
services as part integrated services that provides. which resulted in a 
smoother transition of our internationalization process. 
The Director revoked the approval of the petition finding that the Petitioner"s response to the NOIR 
did not establish that the Beneficiary was employed abroad with a qualifying organization fiJr one 
year in the three years preceding her entry into the United States. The Director acknowledged the 
Petitioner's statement that her position did not require direct contact with clients or supervision of 
employees. but noted that this statement was contradicted by information in the Bcncticiarv's 
resume. The Director further questioned the probative value of the letter from noting 
that neither the Beneficiary's resume nor the Petitioner· s previous description of her duties 
mentioned this company. 
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Mat1er of R-F-& F-S-. LU' 
The Director also pointed to the Petitioner·s inability to document the Beneficiary"s daily Skype and 
IP telephone contact with the Mexican entity, and the lack of documentation suppot1ing the 
Petitioner's claim that she had several in-person meetings with other managerial staff Finally. the 
Director noted that the Petitioner did not address the discrepancy in the Beneficiary's claimed dates 
of employment with the foreign entity. In addition to revoking the approval of the petition. the 
Director found that ''the beneficiary has submitted false evidence in regards to her past employment 
which misrepresents a material fact·· 
On appeal, the Petitioner again emphasized that neither the Petitioner not the Bencticiary ever 
indicated that she lived and worked in Mexico during her period of employment abroad. The 
Petitioner noted that the Beneficiary consistently identified her actual place of residence on her 
resume and Form G-325A and did not misr epresent the circumstances of her employment with the 
foreign entity. 
The Petitioner submitted a statement from the Beneficiary, who explained that, while she worked for 
the foreign entity between 2007 and 2010, when preparing her resume for submission. she 
"understood that the emphasis should mainly rest on the last year, prior to her entry to the United 
States." She also explains that her role in assisting was not intended to be pat1 of her otlicial 
responsibilities. but that her role expanded when a longtime client of the Mexicrm entity began 
operations in Poland and requested assistance. She notes that the resume does not contain an 
exhaustive list of every task she performed. 
After a preliminary review of the appeal. we issued an RF E in which we asked the Petitioner to 
provide additional evidence establishing the Beneticiary" s employment with the Mexican affiliate 
between 2007 and 20 l 0.
1 
We noted that such evidence could include executed employment 
contracts, payroll records. pay statements. bank records showing payments made to the Beneficiary. 
the Beneficiary ' s tax filings reflecting income derived from the Mexican entity , or internal e-mail 
correspondence. 
In response to our RFE, the Petitioner concedes that it cannot provide any· evidence of payments 
made to the Beneficiary. explaining as follows: 
Partly because fthe foreign entity J is a family enterprise and partly because the shares 
in the foreign aftiliate company were donated to her. the Bencticiary agre ed that, in 
exchange for her shares and due to the privileges that she was allotted (in not being 
required to be physically present at the corporate site), she would not be paid a salary 
for the period she lived abroad while her husband was on an international assignment 
with his job. Her compensation for serving as Vice-President were the shares \Vhich 
were donated to her in September 2009. 
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We als_o a:ked the Petitioner to provide evidence of its right to conduct business in Texas. noting that a search of public 
records md1cated that such nghts had been forfeited. The Petitioner has resolved this concern and provided evidence that 
it is in good standing. 
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Jvfaller (~( R-F-&F-S-. LLC 
The Petitioner also appears to claim that the Beneficiary communicated with the Mexican affiliate 
solely via Skype and and docs not provide any additional evidence, such as evidence of e­
mail correspondence between the Beneficiary and the 
Finally. the Petitioner further clarities its intent in appealing the Director"s decision: 
Our purpose in tiling the Appeal was to clear the implication and or any charge that 
there was intentional misrepresentation, fraud or deceit. We recognize that the 
employment terms were not what would be traditionally acceptable to an employer or 
employee . We now understand that this Petition possibly should not have been 
approved. Based on what has been requested. we understand we did not have a 
strong case for an Employment based visa, since we cannot comply v.ith the evidence 
required by USCIS. HO\vever. lack of evidence does not consequently lead to a 
charge of fraud or misrepresentation. 
B. Analysis 
The Petitioner has not established that the Beneficiary was employed abroad in a managerial or 
executive capacity for at least one year in the three years preceding her admission to the United 
States. 
While the Petitioner has provided reasonable explanations t(w some of the inconsistencies observed 
by the Director, the Petitioner has not sufficiently explained the almost complete lack of evidence 
showing that she actually performed duties for the foreign entity as a full-time executive employee 
as claimed. The Petitioner's claim that she accepted "donated'' shares in 2009 in lieu of a salary 
does not comport ·with its claim that she assumed her position with the foreign entity in 2007. The 
Petitioner has not accounted for the lack of evidence that she received any form of compensation 
prior to 2009. 
Further. the Petitioner's descriptions of the Beneficiary's \<YOrk indicate that she \Vould have been 
required to communicate with the f()reign entity in writing. For example. the Petitioner stated that 
she reviewed reports generated by the foreign entity's branch offices in Mexico: hov.ever. it is 
unclear how she would have been involved in this process without the ability to receive and rcvinv 
documents online. Further. the Petitioner submitted various company documents in support of its 
claim that the Beneficiary was involved in planning and policy making. The Pctitioner·s claim that 
her communications were strictly by Skypc and [p phone are not credible and the lack of any written 
correspondence undermines the Petitioner's description of her job duties as vice president. 
In addition, we note that the Beneficiary did not reside abroad during the last tive months of her 
claimed employment with Mexican entity. Rather. the Beneficiary indicated that she resided in 
Mexico from June to November 2010. The Petitioner did not explain why it is unable to provide 
evidence of her employment during this time period. when she \Vould have reasonably been able to 
pertonn her work in the office rather than relying on Skype. 
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Mafler (!lR-F-&F-S- . LLC 
In short, the evidence is simpl y insuffici ent to show that the Beneficiary was emp loyed by the 
foreign entity in the claimed capacity between 2007 and 20 I 0. or between 2009 and 201 0. /\It hough 
the Beneficiary may be an otlicer of the foreign entity based upon her minority ownership interest in 
the family business. the Beneticiary's partial owner ship of the t()reign entity is not sufficient to 
establish her employm ent with the company. 
We do not discount the poss ibilit y that the Benefici ary attend ed some mana gement or shar eholder 
meetings , had some input into the manage ment of the company, or p erformed some role with the 
company on an ad hoc basis while residin g in Poland , such as consulting work tor 
which is one of few details of the Beneficiary's time a broad for which the Petit ioner was ab le to 
prov ide supporting evidence. However , the Petitioner now concedes, and we agree. that it has not 
provided sufficient evidence that Beneficiary was empl oyed by the foreig n entity during the relevant 
time period and that the Bene ficiary did not have a traditiona l emp loyme nt relati onsh ip w ith the 
foreign entity. Accordingly. we will dismiss the appeal. 
IlL WILLfU L MISREPRESENTATION OF A MATERI A L FACT 
The remaining issue to address is whether the Director properly entered a findin g of fraud or wi llful 
misreprese ntation of a mater ial fact. The Director speci fically fo und that the Beneficiary had 
submitted "false evidence in regards to her past employment , which mi srepres ents a materia l fact." 
Any foreign person who. by fraud or willfull y misrepr esenti ng a mat erial fact seeks to procure (or 
has sought to procur e or has procured) a visa. other doc umentation . or ad mission into the United 
States or other benefit provided under the Act is inadmi ssib le. See section 212(a)(6)(C)(i) of the 
Act, 8 U.S .C. 9 1182(a)( 6)(C)( i). 
As out lined by the Board of Immigration Appeals, a material misrepresentation requir es that one 
willfully makes a materi al mis sta tement to a government offic ial lo r the purpo se of obta inin g a n 
immigration benefit to w hich one is not entitled . Matter ofKa i Hing Hui. 15 I&N Dec . 288. 289-90 
(B IA 1975). The term "willfully" mean s knowing a nd intentiona lly. as distingui shed from 
acci denta lly. inadvertently . or in an honest belief that the fac ts are otherw ise. S'ee Ala/fer o{ Tijmn. 
22 I&N Dec. 408. 425 (B IA 1998); Muller ol Healy and Goodchild , 17 I&N Dec. 22. 28 (BI/\ 
1979). To be considered mater ial. the misrepresentation must be one which ""tends to shu t off a line 
of inquir y which is relevant to the a lien's eligibility. and which might well have resulted in a proper 
determination that he be excl uded." Matter o(Ng. 17 I&N Dec. 536 . 53 7 (B IA 1980). 
Accordingly. tor an immigr ation otTicer to find a willful and material misrepr ese ntation in visa 
petition proceedings, he or she must determin e: I) that the petitioner or benefic iary made a false 
representation to an aut horiz ed otlicial of the United Sta tes gove rnment ; 2) that the 
misreprese ntati on was \Villfull y made: and 3) that the fact mi sreprese nted was mat erial. ,\'ee A-faller 
(?lM-, 6 l&N Dec. 149 (B IA 1954) : Matter olL-L-. 9J&N Dec. 324 (B IA 196 1 ): Matter o(Ka i Hing 
Hui. 15 J&N Dec . at 288. 
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Matter olR-F-&F-S-. 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 Maller ofShirdel. 19 I&N Dec. 33. 35 (BIA 19S4 ). 
The Director's findings were based on inconsistencies regarding the Beneficiary· s stated dates of 
employment with the foreign entity. some inconsistencies in the claimed nature of her duties with the 
foreign entity. and a lack of sufficient supporting evidence of her performance of duties for the 
Petitioner's Mexican at1iliate while residing abroad in Poland. 
The record shows that the Beneficiary was forthcoming. in both her resume and in her Form 
G-325A, about the fact that she resided in Europe during most of her claimed period of employment 
with the Mexican entity. There is insufficient factual suppmi for the Director's finding that she 
created or submitted false evidence in order to establish her eligibility for the benefit sought. 
As discussed above. the Beneficiary is an owner and otlicer of the Mexican company and likely held 
the claimed title and participated in some way in the management of her family business. However. 
the record contains too many inconsistencies and too little supporting evidence to establish that she 
was employed by the foreign entity in an executive capacity as required or that she performed all of 
the claimed job duties. It does appear that the Petitioner may have exaggerated the scope and extent 
of her duties. but we find insufficient factual basis tor the Director's finding of fraud or willful 
material misrepresentation on the part of the Beneficiary. Accordingly. that finding is withdrawn. 
IV. CONCLUSION 
The appeal must he dismissed as the Petitioner has not demonstrated that the Beneficiary had one 
year of employment with the foreign entity in the three years preceding her entry to the United States 
as a nonimmigrant to work for the Petitioner. The Director's finding that the Beneficiar) submitted 
false evidence and willfully misrepresented material facts in support of this petition is withdrawn. 
ORDER: The appeal is dismissed. 
Cite as Matter o(R-F-&F-,)'-. LLC. JD# 7468S 1 (AAO Feb. 22. 201 S)