dismissed EB-1C Case: Management

DATE: NOV \ 3 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § I 153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
w'Ww,uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeaL The appeal will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(1 )(C), as a multinational 
executive or manager. 
In support of the Form 1-140 the petitioner submitted an undated statement, which briefly discussed the 
petitioner's eligibility in terms of its claimed qualifYing relationship with the beneficiary's foreign employer 
and the beneficiary's job descriptions in his foreign and proposed employment. The petitioner also provided 
supporting evidence in the form of fmancial and corporate documents pertaining to both entities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a notice of intent to deny (NOlO) dated May 24, 2011 informing the petitioner 
of various evidentiary deficiencies. The director determined that the information the beneficiary provided in 
his application with regard to his time period of employment 
with the affiliate entity abroad was inconsistent with the information he later provided in the Biographic 
Information Form G-325A. The director determined that the inconsistency amounts to willful 
misrepresentation. Additionally, with regard to the petitioner's statutory eligibility, the director determined 
that the record lacked evidence showing that 1) the beneficiary was employed abroad in a qualifying capacity; 
2) the petitioner has a qualifying relationship with the beneficiary's foreign employer; and 3) the beneficiary 
would be employed in the United States in a qualifying capacity. 
The petitioner provided a response, which included a statement from counsel dated June 23, 2011 and a 
statement from the beneficiary dated June 17, 2011 addressing the director's adverse findings. The 
beneficiary referred to the above described inconsistency as a minor and unintentional error. He claimed that 
the _ application requested an employment history for only the three years prior to the date of the 
application, which guided the beneficiary to speak directly to the time period in question. 
After reviewing the record, the director concluded that the petitioner failed to overcome the finding of willful 
misrepresentation and did not establish statutory eligibility based on the three grounds that were previously 
discussed in the NOlO. 
On appeal, the only finding that counsel disputes is the director's finding of fraud and willful 
misrepresentation. Counsel submits a brief in which he concedes to the director's adverse finding regarding 
the issue of the petitioner's qualifying relationship, which he admits was severed when the beneficiary sold 
his ownership interest in the foreign entity. Counsel declines to address either of the other two statutory 
grounds, asserting that the two other issues are now moot based on the petitioner's admission that it no longer 
has a qualifying relationship with the beneficiary's foreign employer. 
The AAO therefore finds that the petitioner, based on its admission on appeal, is statutorily ineligible for the 
immigration benefit sought, even if there were no other adverse findings present. In light of counsel's failure 
to address or even to dispute the two other adverse findings, which pertain to the beneficiary's employment 
capacity in his foreign and proposed positions, the AAO affirms all three adverse fmdings. Therefore, the 
petitioner has failed to overcome the three adverse findings concerning its statutory ineligibility and the 
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appeal will be dismissed based on the petitioner's failure to establish that 1) it has a qualifying relationship 
with the beneficiary's foreign employer, 2) the beneficiary was employed abroad in a qualifYing managerial 
or executive capacity, or 3) the beneficiary would be employed in the United States in a qualifying managerial 
or executive capacity. 
Lastly, with regard to the director's finding that various factual discrepancies pertaining to the beneficiary'S 
time period of employment abroad amounted to fraud and willful misrepresentation, the AAO concludes that 
the record lacks a sufficient basis for the finding of fraud and hereby withdraws that finding. 
In reviewing the documents in question, the record is clear in showing that when asked to provide the dates of 
past employment, the beneficiary's response to No. 10 in his _ application was not consistent with the 
information he provided in Form G-325A. More specifically, when asked to provide dates of prior 
employment dating back three years from June 3, 2003 the date the beneficiary filed the _ application, 
the beneficiary indicated that he was employed at January 2000 to September 2002. 
However, when asked to provide dates of prior back five years from May 11, 2005, the 
date the beneficiary filed the Form G-325A, the beneficiary indicated that his employment with. 
_commenced in April 1994 and ended in March 2003. These two sets of dates are indisputably 
inconsistent. However, an inconsistency does not necessarily rise to the level of fraud and/or willful 
misrepresentation unless certain criteria are met. 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. I A 
misrepresentation of material fact may lead to serious consequences, including but not limited to the denial of 
the visa petition, a finding of fact that may render an individual alien inadmissible to the United States, and 
criminal prosecution. 
A misrepresentation may lead USC IS to enter a finding that an individual alien sought to procure a visa or 
other documentation by willful misrepresentation of a material fact. This finding of fact may lead USCIS to 
determine, in a future proceeding, that the alien is inadmissible to the United States based on the past 
misrepresentation. 
Section 212(a)(6)(C) ofthe Act, 8 U.S.C. § I I 82(a)(6)(C), provides: 
Misrepresentation. - (i) In general. - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure (or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that the alien 
willfully make a material misstatement to a government official for the purpose of obtaining an inunigration 
I The terms "fraud" and "misrepresentation" are not interchangeable. Unlike a finding of fraud, a finding of 
material misrepresentation does not require an intent to deceive or that the officer believes and acts upon the 
false representation. See Matter ofKai Hing Hui, 15 I&N Dec. 288 (BIA 1975). A finding of fraud requires a 
determination that the alien made a false representation of a material fact with knowledge of its falsity and 
with the intent to deceive an immigration officer. Furthermore, the false representation must have been 
believed and acted upon by the officer. See Matter ofG-G-, 7 I&N Dec. 161 (BIA 1956). 
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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 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 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: I) 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 (BrA 1954); Matter ofL-L-, 9 
I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. at 288. 
In addressing this issue on counsel asserts that the beneficiary was merely responding to the express 
question posed in the application, which asked the applicant to address a specific three-year period. 
Counsel asserts that the beneficiary did not list any of the other years he had been employed with _ 
_ because this information was not expressly requested in the application. While counsel's response 
is plausible, it d~ why the beneficiary later accounted for a nine-year period of alleged 
employment with __ when the Form G-325A only asked the beneficiary for an employment 
history covering "the last five years" prior to the date of filing. 
Nevertheless, the AAO notes that even if the beneficiary reiterated the shorter period of employment as 
provided in he would not be rendered ineligible for the immigration benefit sought herein, provided 
that sufficient evidence were provided to establish that the claimed period of employment were factually 
accurate. The fact that the beneficiary has provided two significantly distinct periods of employment abroad 
with the same entity, without having provided any objective evidence to resolve this inconsistency, gives U.S. 
Citizenship and Immigration Services a valid reason to doubt the validity of the petitioner's entire claim 
regarding the beneficiary's period of employment abroad. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). That being said, however, the AAO fmds that the record lacks sufficient evidence to establish that I) 
the misrepresentation pertaining to the beneficiary's time period of employment abroad was willfully made or 
2) that the facts misrepresented were material, as neither period of employment, if proven to be true, would 
render the beneficiary statutorily ineligible for the benefit being sought. 
In light of the above, the AAO hereby withdraws the director's affirmative fmding of fraud and willful 
misrepresentation. However, as previously discussed, the petitioner is statutorily ineligible to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(1 )(C) of the Act and therefore the 
petition cannot be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.s.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.