dismissed EB-1C Case: Oil And Gas Engineering

(b)(6)
DATE: FEB 1 0 2014 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrarive Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FlLE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions . If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;k~ 
1-Iion Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.goy 
(b)(6)
NON-PRECEDENT DECISION 
Page 'L 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of Florida engaged in the provision of engineering and 
professional services in the oil and gas industry. The petitioner states that it is a subsidiary of 
iocated in Brazil. It seeks to employ the beneficiary as its 
technical support division manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition on May 13, 2013 , concluding that the petitioner failed to establish: (1) that 
the foreign entity employed the beneficiary in a qualifying managerial or executive capacity for one year 
within the three years preceding the beneficiary's admission as a nonimmigrant; (2) that it will employ the 
beneficiary in a qualifying managerial or executive capacity; and (3) that the foreign entity continues to do 
business abroad.' The director denied the petition with a finding of fraud or willful misrepresentation of a 
material fact. This determination was based on a finding that the petitioner submitted false evidence, 
specifically with respect to: its statement made on the Form I-140 regarding the petitioner's number of 
employees; the statement made regarding the beneficiary's employment with the foreign entity, and the 
statement made regarding the beneficiary's proposed employment with the petitioner. 
On appeal, counsel contends that the director erroneously concluded that the petitioner misrepresented 
material facts or submitted false evidence, and that the director otherwise denied the petition in error. The 
petitioner submits additional evidence endeavoring to establish: (1) that the beneficiary was employed in a 
managerial or executive capacity abroad in one of the three years preceding his entry into the United States 
on nonimmigrant status; (2) that he will be employed in a managerial or executive capacity in the United 
States; and (3) that the 
foreign employer is doing business as defined by the regulations. 
II. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. --Visas shall first be made available .. . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
1 The director initially denied the petition on March 26, 2013 based, in part, on the petitioner's failure to 
submit a timely response to a Notice of Intent to Deny issued on November 12, 2012. The director reopened 
the matter in order to consider the petitioner's response to the NOID, which it submitted on March 25, 2013. 
(b)(6)
.t'age j 
NON-PRECEDENT DECISION 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manage s the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 110l(a)(44)(B), provides: 
(b)(6)
Page 4 
NON-PRECEDENT DECISION 
The term "executive capacity" means an assignment within an organization m which the 
employee primarily-
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
II. Facts and Procedural History 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker, on November 26, 2010. The 
petitioner stated on the Form I-140 that it has 16 employees and seeks to employ the beneficiary as its 
"Technical Support Division Manager." 
After reviewing the petitioner's initial evidence, the director issued a notice of intent to deny (NOID) on 
November 27, 2012. The director advised the petitioner of derogatory information obtained from outside the 
record of proceeding, pursuant to 8 C.F.R. § 103.2(b)(16)(ii), and provided the petitioner with an opportunity 
to submit rebuttal evidence. 
The director advised the petitioner that certain information obtained by USCIS conflicted with claims made 
by the petitioner and foreign employer and revealed that the beneficiary was not employed by the foreign 
employer in a managerial or executive capacity. The director acknowledged the petitioner's claim that the 
beneficiary was employed as the foreign entity's operational support director from May 2, 2006 through 
November 30, 2008. However, the director informed the petitioner that according to U.S. Department of 
State records, the beneficiary indicated on a nonimmigrant visa application that he was employed as a 
chemical engineer with as of July 2008. The director further questioned 
whether the beneficiary was employed in a managerial or executive capacity with the foreign employer given 
that he was previously admitted to the United States in December 2008 as an L-IB specialized knowledge 
nonimmigrant intracompany transferee. Lastly, the director referenced the vague nature of the beneficiary's 
duties and other discrepancies in the record related to the beneficiary's foreign employment and concluded 
that the record was not sufficient to establish that he was employed abroad in a qualifying managerial or 
executive capacity. 
The director further stated in the NOID that the petitioner had failed to show that the beneficiary's proposed 
role in the United States would be in a managerial or executive capacity. The director stated that USCIS had 
collected information indicating that the beneficiary has been and would be residing and working in Texas, in 
apparent contradiction to the assertion by the petitioner in the Form I-140 petition that the beneficiary has 
(b)(6)
NON-PRECEDENT DECISION 
rage 
been and would be working and living in Florida . The director also concluded that the beneficiary's 
proposed duties are overly vague and failed to establish that the beneficiary would spend a majority of his 
time performing executive or managerial duties. Finally, the director found that "it appears that the 
petitioner had misrepresented relevant facts concerning the beneficiary's proposed employment with its 
company based upon his current employment as an L-IB non-immigrant worker. 
The director further advised the petitioner that it had not established that it had been doing business for one 
year preceding the filing of the petition, nor had it demonstrated with sufficient evidence that the foreign 
employer was doing business as defined by the regulations. The director requested that the petitioner submit 
additional evidence, along with additional evidence of its ability to pay the beneficiary ' s proffered wage. 
The director did not specify in the NOID the period of time within which the petitioner was required to 
respond. 
The petitioner submitted a response to the NOID on March 25, 2013. Prior to reviewing this response, the 
director issued a decision denying the petition on March 26, 2013, citing the same issues set forth in the 
NOID . On April 25, 2013, the director advised the petitioner that USCIS would reopen the matter on service 
motion pursuant to 8 C.P.R. § l03 .5(a)(5), based upon the director's failure to specify a deadline to respond 
to the NOID. The director withdrew his previous decision of March 26, 2013 and informed the petitioner of 
his intent to consider the petitioner's response to the NOID received on March 28, 2013. 
After considering the petitioner's response to the NOID, the director issued a decision denying the petition 
on May 13, 2013. The director concluded that the petitioner failed to establish: (1) that the foreign entity 
employed the beneficiary in a qualifying managerial or executive capacity for one year within the three years 
preceding the beneficiary's admission as a nonimmigrant; (2) that it will employ the beneficiary in a 
qualifying managerial or executive capacity; and (3) that the foreign entity continues to do business abroad . 
The director denied the petition with a finding of fraud or material misrepresentation based on a 
determination that the petitioner submitted false evidenc e, specifically with respect to its statements 
regarding the beneficiary's employment abroad and its number of employees, and that it misrepresented 
material facts with respect to the beneficiary's proposed employment. 
III. The Issues on Appeal 
A. Employment with the petitioner in a managerial or executive capacity 
The first issue to be addressed is whether the petitioner established that the beneficiary will be employed in a 
qualifying managerial or executive capacity in the United States. 
1. Facts 
In a letter submitted at the time of filing, the petitioner stated that it is a management consulting company 
engaged in supporting a large petrochemical company, with its offshore petroleum drilling 
operations, including procuring contractors, providing technical support, project planning and management , 
procurement services, construction management, and interfacing with sea vessels. The petitioner stated that 
(b)(6)
NON-PRECEDENT DECISION 
Page b 
it is organized into four divisions under the direction of the chief executive officer (CEO), including : a 
commercial division responsible for marketing and sales; a technical support division providing highly 
specialized technical support services; an operations management division providing advisory and 
management services such as engineering and technical support; and a financial division devoted to the 
financial and administrative activities of the company. 
The petitioner further noted that the technical support division was composed of five departments, including 
technical services, technical maintenance, logistics , information technology, and human resources, each with 
its own manager. The petitioner stated that the beneficiary has been in employed in L-l status in a position 
subordinate to the technical support division manager. The petitioner explained that the division manager 
position recently became vacant and that the beneficiary would be promoted to fill the position . In an 
employee list submitted at the time of filing, the petitioner identified the beneficiary's current position as 
"Special Project Management Engineer." 
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, USCIS will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). In 
a support letter submitted with the petition, the petitioner's chief executive officer (CEO) explained the 
beneficiary's proposed duties as technical support division manager, in part, as follows: 
In the position of Technical Support Division Manager, [the beneficiary] shall be 
responsible for the definition and the accomplishment of the goals, objectives, and 
policies of the business division, and responsible for planning, organizing, directing, and 
controlling the business unit. As his objective, he shall help the company to reach the 
goals that ensure its satisfactory results in terms of profitability, continuity, and customer 
satisfaction. For that, he shall define, implement, follow-up, and report all the goals, 
objectives, policies, and initiatives of the business division, in the short, mid, and long 
terms, and he shall plan, organize, direct, and control all the management and functional 
aspects of the business division. He shall exercise full authority delegated by the Chief 
Executive Officer, under his general supervision, reporting the progress and status of the 
business division under his authority. 
Further, the petitioner's CEO set forth the following "basic duties" of the proposed position: (1) conferring 
with subordinate managers to decide upon matters with problems or matters needing to take special 
decisions, (2) helping and orienting them with specific problems within each of their areas of activities or 
amongst inter-related areas, (3) conferring with the managers to review policies, goals, objectives, and 
procedures, and to review and evaluate the business division and its performance in general within each one 
of the departments and sections of the organization, (4) joining electronic meetings with management of 
headquarters to confer with the directors and managers of the organization abroad, (5) getting information 
about new developments within the organization , increasing the knowledge and enriching the expertise 
within the American affiliate of our economic group, (6) performing reviews of activities of all the areas of 
the business division, to evaluate their performance, approve expenditures, enforce rules, change individual 
procedures, and make decisions related to the management procedures, (7) conducting general evaluation 
meetings , where the matters of general interest of the business division are discussed, (8) conferring with the 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
managers to oversee their activities related to clients of the organization, (9) reviewing documents, 
statements , reports and peiformance data to measure productivity and goal achievement and to determine 
areas needing changes or improvement, and (10) performing full reviews of ongoing projects, to make 
decisions to change course, if needed, or to keep track of them to ensure their successful development. 
The petitioner's initial evidence included three organizational charts depicting the "general management" 
hierarchy and the structure of the technical support and operations management divisions. The beneficiary's 
proposed position is identified on the general management chart as one of four division manager positions 
reporting to the company's CEO. The technical support division chart identifies five managers who would 
report to the beneficiary in his proposed position : technical services manager, technical maintenance 
manager , logistics manager , information technology manager, and human resources manager. The 
operations management division chart identifies six subordinate managers in that division. The three charts 
combined identify a total of 16 positions within the company, including the CEO , four division managers , 
and subordinate managers. 
The petitioner also provided a document describing its management structure and the roles of each level of 
the organizational hierarchy. The petitioner stated that its division managers direct the department managers 
and, indirectly, their subordinate supervisors, while the department managers oversee supervisors, and, 
indirectly, all employees and contract employees of the company and the day-to-day activities of the 
organization. The petitioner also included "Special Project Management Engineers," below the department 
managers, noting that these employees "offer support to the company and to the company's clients, 
transferr-ing from our group the highly specialized knowledge in the exploration of oil and gas in deep and 
ultra-deep waters." The petitioner noted that its list of employees "does not include the contract employees 
of the company and the employees of contractors, sub-contractors, business partners, and clients, performing 
the company's operational and other non-executive and non-managerial activities." The petitioner did not 
further identify any contract employees. 
In the NOID, the director advised the petitioner that USCIS' investigation revealed that the beneficiary has 
been working and residing in Texas, not Orlando, Florida, as stated in the petition and supporting 
documentation. In addition, the director acknowledged the position description provided for the proposed 
position, and advised the petitioner that the duties were described in overly broad terms and did not convey 
an understanding of what the beneficiary would do on a day-to-day basis. Finally, the director emphasized 
that the beneficiary is currently employed as an L-lB specialized knowledge worker and questioned whether 
the offered employment meets the requirements found at section l01(a)(44)(A) or (B) of the Act.2 
2 In the NOID, the director noted that the petitioner stated at the time of filing that "the beneficiary was 
transferr-ed to the United States to work as the petitioner's Technical Support Division Manager," and that his 
"L-lB temporary employment is the same job title as the proposed employment." Upon review, the 
petitioner did not make these statements, but rather indicated at the time of filing that the beneficiary is 
currently employed as a special project management engineer and that he would be promoted to the technical 
suppo1t division manager position. 
(b)(6)
NON-PRECEDENT DECISION 
Page~ 
In response, the petitioner confirmed that USCIS accurately listed the beneficiary's addresses in Texas in the 
NOID. The petitioner clarified that the home address provided for the beneficiary on the Form I-140 is a 
property the company uses to temporarily house employees traveling to work at the company's head 
office in 
Orlando. The petitioner indicated that its operation s office is located at in 
Texas and explained the beneficiary' s role as a special project management engineer required him to perform 
services based in 
In addition, the petitioner provided additional insight into the beneficiary's current specialized knowledge 
role, specifying that the beneficiary has acted as a special project management engineer with the petitioner 
providing professional services to the petitioner's main client, The petitioner stated that the 
beneficiary worked to create operational procedures for the client related to disconnecting offshore drilling 
operation s in the Gulf of Mexico through a technology called a floating-type vessel platform (FPSO) . The 
petitioner further explained that the beneficiary provided expertise to the client on sub-sea equipment 
fabrication, installation and control systems and operational supp01t capabilitie s. The petitioner assetted: 
The beneficiary's roles and responsibilities inc! ude, but are not limited to, the 
management of his areas of responsibility on a daily basis, as well as the development of 
policies , processes, roles, and responsibilities and procedure s for the entire organization 
busine ss areas. 
The above described knowledge, roles and responsibilities led us to believe that the 
beneficiary, our Technical Support Division Manager, fulfilled all requirements [to 
qualify as a manager or executive consistent with the Act]. 
Further, in respon se to the director's NOID and on appeal, the pet1t10ner submits numerous invoices 
including bills issued to from 2009 to 2012 for services provided by the beneficiary as both an 
" interface coordinator," "site representative ," and a "consultant on project." 
The petitioner stated that the beneficiary's responsibilities in his current role have included site engineering 
management, project management, interface management, IT support and management, process engineering , 
construction and commissioning pending items management, regulatory surveillance plan m~nagement, and 
offshore logistics management. The petitioner noted that each of these areas was supervised directly by 
experienced engineers. The petitioner concluded that "the above described knowledge , roles and 
responsibilities led us to believe that the beneficiary . 
. . fulfilled all requirements defined on INA 
101(a)(44)(A) . Therefore, we understand that his multinational manager classified petition is fully 
supported. " The petitioner did not provide any additional information regarding the proffered position of 
Technical Support Division Manager. 
The petitioner 's response to the NOID included copies of all IRS Forms 941 , Employer's Quarterly Federal 
Tax Returns, filed between 2009 and 2011, including the Forms 941 for the last two quarters of 2010. At the 
time of filing, the petitioner submitted a Form 941 for the third quarter of 2010 which indicated that the 
company had 16 employees and paid $314,444 in salaries and wages. The petitioner also provided a copy of 
its Florida Form UCT-6, Employer's Quarterly Report, for the same quarter which listed the 16 employees 
(b)(6)
NON-PRECEDENT DECISION 
Page Y 
named in the petitioner's organizational chart. However, the petitioner submitted a different Form 940 for 
the third quarter in response to the NOID which indicated that the company had 1 r employees and paid 
$269,788 .33 in salaries and wages. The petitioner also included the Form 941 for the fourth quarter of 2010, 
the quarter in which the petition was filed , which indicates that the company had only six (6) employees . In 
2011, the petitioner reported 3 to 7 employees on its Forms 941. 
In denying the petition, the director found the petitioner's responses and additional evidence submitted in 
response to the NOID were insufficient to overcome the insufficiencies and discrepancies addressed therein . 
Further , the director noted that the petitioner had failed to provide further explanation regarding the 
beneficiary's duties in the United States despite being advised that the initial description of duties provided 
was overly vague. In addition, the director emphasized discrepancies in the record with respect to the 
petitioner's staffing levels. The director observed that the Form I-140 petition stated that the petitioner had 
sixteen employees , while the petitioner's IRS Form 941 Employer's Federal Quarterly Tax Return for the 
last quarter of 2010 indicated that the petitioner had only six employees at the time the petition was filed. 
Lastly, the director stated that "it appears that the petitioner has misrepresented relevant facts concerning the 
beneficiary's proposed employment with its company based on his current employment as an L-IB 
nonimmigrant worker." 
On appeal, counsel states that the director's conclusion was erroneous, and submits additional evidence in 
support of her assertion that the beneficiary will be employed in a managerial or executive capacity. This 
evidence includes a revised organizational chart for the petitioner , copies of the petitioner's IRS Forms W -2, 
Wage and Tax Statements for the years 2009 through 2012, copies of the petitioner's IRS Forms 1120, U.S. 
Corporation Income Tax Return, for the years 2009 through 2012, support letters from the petitioner's 
employees attesting to 
the beneficiary's role, evidence of the beneficiary's bachelor ' s degree in Chemical 
Engineering , and other evidence of the beneficiary's training and membership in trade associations . 
2. Anal ysis 
Counsel ' s assertions are not persuasive. Upon review of the petition and the evidence, and for the reasons 
discussed herein, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner 's description of the job duties. See 8 C.P.R. § 204 .5(j)(5) . 
The petitioner 's initial description of the duties for the technical support division manager position were 
vague and non-specific, and thus failed to convey an adequate understanding of what the beneficiary would 
be doing on a day-to-day basis . For example, the petitioner stated that the beneficiary's duties would include : 
"the definition and the accomplishment of the goals, objectives and policies" of the division; "planning 
organizing, directing and controlling the business unit"; "define, implement, follow-up and report all the 
goals, objectives , policies and initiatives"; "organize , direct and control all the management and functional 
aspects of the business division"; and "exercise full authority" over the progress and status of the division. 
These statements merely paraphrase the statutory definition of "executive capacity" at section 10l(a)(44)(B) 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
of the Act. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates , Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N .Y.). 
The remainder of the beneficiary's proposed duties were described in similarly general terms, and included 
attending various meetings , performing reviews of activities, approving expenditures, enforcing rules, 
making decisions regarding management procedures, reviewing reports and performance data, and reviewing 
ongoing project s to ensure successful development. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine . The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . at 1108, aff'd, 905 F.2d 41 (2d. Cir. 
1990). 
The petitioner was given an opportunity to provide an expanded description of the beneficiary' s proposed 
duties in response to the NOID, but instead it provided additional information regarding the beneficiary's 
previous specialized knowledge role as a special project management engineer , stating that the duties qualify 
the beneficiary as a manager or executive . At the same time, the petitioner indicated that the beneficiary 
currently holds the proffered position of technical supp01t division manager , but it failed to provide the 
requested detailed description of this role. Therefore, the petitioner's response to the NOID, and the 
additional evidence submitted on appeal, fail to address the director's conclusion that the provided duties for 
the beneficiary in the United States were overly vague. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). 
Overall, the petitioner has failed to provide any detail or explanation of the beneficiary's activities in the 
course of his daily routine, even following notice from the director of their insufficiency. The actual duties 
themselves reveal the true nature of the employment. Here, the evidence submitted by the petitioner 
suggests that the beneficiary will remain in a role similar or identical to that he previously held, leaving 
question as to whether he will primarily perform managerial or executive duties . As noted above, the 
petitioner asserted in response to the director ' s NOID that it believed the petitioner's specialized knowledge 
role qualified him as a manager or executive. Alternatively, the petitioner also asserted in support of the 
petition that the beneficiary would be promoted, upon the approval of the petition, to the position of 
technical support division manager from his former specialized knowledge role, which was not initially 
characterized as managerial or executive. The petitioner's confusion and vagueness with respect to the 
beneficiary ' s claimed new managerial or executive position leaves question as to whether there will be any 
change in his current role. Indeed, to the extent the petitioner's has provided specifics regarding the 
beneficiary's duties , these specifics support a conclusion that the beneficiary has provided, and will continue 
to provide professional services directly to the petitioner's clients. The record reflects that the petitioner 
continue s to invoice its client for services provided by the beneficiary as "interface coordinator" and 
"consultant on project" in 2012, despite the petitioner's assertion at the time of filing that he was being 
promoted to a managerial role based in Florida. 
(b)(6)
NON-PRECEDENT DECISION 
age I l 
The definitions of executive and managerial capacity have two parts. First , the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions . Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). Without a sufficient duty description for the beneficiary 
in his newly proposed managerial or executive role, USCIS cannot determine whether the beneficiary will 
primarily perform executive or managerial duties and the petitioner's claims fail on an evidentiary basis. The 
director properly denied the petition based on this evidentiary deficiency . 
Further, when examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of 
the record , beyond the beneficiary's duties, including the duties of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. 
The petitioner's evidence of its staffing levels and organizational structure is rife with inconsistencies . The 
petitioner has submitted, without explanation, dissimilar organizational charts bearing similar dates, and 
multiple conflicting versions of its JRS tax documentation for the relevant time period. Accordingly, the 
AAO cannot determine the number or types of employees working for the company at the time of filing. 
As noted above, organizational chart submitted at the time of filing identified the beneficiary's proposed role 
as technical support division manager, and indicated that he would supervise a technical services manager, a 
technical maintenance manager, a logistics manager, an information technology manager, and a human 
resources manager. The chart included a commercial division manager, a financial division manager, and an 
operations management division manager, who was depicted as having six subordinates with managerial job 
titles. The organizational chart was dated November 2010. 
The petitioner stated on the Form I-140 that it had 16 employees and its initial evidence included an IRS 
Form 941 and a Florida Employer's Quarterly Report (Form UCT-6) for the third quarter of 2010 on which it 
reported that it had 16 employees . All employees named on the organizational chatt were also identified on 
the Employer's Quarterly Report for the quarter ended on September 30, 2010. Both the Form 941 and Form 
UCT-6 were self-prepared and neither document was signed. However, in response to the director's NOID, 
the petitioner submitted an JRS Form 941 for the third quarter of 2010 reflecting that the petitioner had 
eleven employees and an JRS Form 941 for the fourth quarter of 2010 indicating that the petitioner had only 
six employees during the quarter in which the petition was filed. Both of these documents were prepared by 
the petitioner's usual tax preparer and were signed by the petitioner. The petitioner did not explain why it 
submitted two different JRS Forms 941 for the same quarter of 2010. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
On appeal, the petitioner introduces additional discrepancie s into the record. First, the petitioner submits an 
organizational chart dated September 2010 which depicts a completely different organizational structure and 
named employees than those listed in the chatt submitted at the time of filing. For instance , the newly 
(b)(6)
NON-PRECEDENT DECISION 
Yage JL 
submitted organizational chart reflects a General Manager at the head of the organization . The General 
Manager position has five direct subordinates including an executive assistant, a contract management 
employee, an "operations project" employee, a technical support manager, and a "subsea consulting" 
employee." 
The chart submitted on appeal depicts the beneficiary as technical support manager, with six direct 
subordinates in the following roles: (1) interface manager; (2) site engineering (a contractor); (3) IT support; 
( 4) process engineering third party verification; (5) regulatory surveillance engineer ; (6) free issued 
equipments (a contractor); and (7) pending items management. The petitioner indicated that the same 
individual fills the roles of IT Support and pending items management. This individual is claimed to 
supervise a foundation software employee, an overseas contractor responsible for "compliance verification 
authority database", and a "DSI Team" comprised of eight contracted discipline engineers. 
In total, the newly submitted organizational chart includes thirteen employees and three contractors. 
Additionally, only four of the named employees on the new organizational chart submitted on appeal 
appeared on the organizational chart submitted in support of the petition. These employees include the 
beneficiary, (previously CEO and now General Manager), (previously operations 
management division manager and now interface manager), and (previously electronic 
document systems manager and now "foundation software.") 
The petitioner also submits IRS Forms W-2 indicating the employment of thirteen employees during 2010 . 
There is one employee on the newly submitted chart who did not receive a Form W-2 in 2010, and one 
employee who received a Form W-2 in 2010 who did does not appear on the chart. The total salaries and 
wage reported on the petitioner's 2010 IRS Form W-3, Transmittal of Tax and Wage Statements, was 
$1,016 ,389.63. The petitioner reported salaries and wages of $1,129,106 on its IRS Form 1120 for 2010. 
The petitioner has provided , without explanation, two completely different organizational charts for the same 
time period. Although the petitioner now indicates that a different structure was actually in place at the time 
of filing, it does not offer a revised description of the beneficiary's duties as technical support manager. 
None of the beneficiary's five subordinate staff identified on the petitioner's original organizational chart 
received an IRS Form W-2 from the petitioner in 2010. In fact, only four of the 16 employees named on the 
original chart and identified on the petitioner's IRS Form UCT -6 for the third quarter of 2010 worked for the 
company at all during that year, based on the 2010 Form W-2s . The original organizational chart, Florida 
Form UCT -6, and initial IRS Form 941 for the third quarter of 2010 all contained information that cannot be 
reconciled with the petitioner's subsequently submitted organizational chart, 2010 Form W -2s, and IRS 
Forms 941 for the third and fourth quarters of 2010, all of which indicated a different staffing and 
organizational structure than that claimed at the time of filing. 
Finally, while the director's decision specifically addressed the discrepancy between the number of 
employees stated on the Form I-140 and the number of employees reported on the petitioner's IRS Form 941 
for the fourth quarter of 2010, the petitioner has not submitted any explanation for these discrepancies but 
has only introduced new conflicting evidence in support of the appeal. 
(b)(6)
----~- --------··- - -----·· ... 
NON-PRECEDENT DECISION 
Page 13 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In this 
case, the discrepancies and errors catalogued above lead the AAO to conclude that the evidence submitted at 
the time of filing misrepresented the company's actual staffing levels and organizational structure. 
Therefore, the petitioner's claim that the beneficiary will serve as the technical support division manager 
responsible for supervising the work of five subordinate who manage discrete departments is not credible. A 
review of the petitioner's contracts and invoices confirm that many of the petitioner's employees named on 
the newly submitted organizational chart, including the beneficiary, are engaged in providing technical 
consulting services to the petitioner's clients for which the petitioner bills the client at an hourly rate. 
The petitioner has failed to submit a detailed duty description or sufficient evidence to establish that its 
organizational structure at the time of the filing of the petition was sufficient to support the beneficiary in a 
managerial or executive capacity. The preponderance of the evidence submitted demonstrates that the 
beneficiary was, and likely will continue to be, primarily engaged in the direct performance of services for 
clients. As such, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity . Accordingly, the appeal must be dismissed. 
B. Employment with the foreign employer in a managerial or executive capacity 
The next issue to be addressed is whether the petitioner established that the beneficiary was employed in a 
managerial or executive capacity for one of the three years preceding his entry into the United States as a 
nonimmigrant. 
1. Facts 
At the time of filing, the petitioner stated that the beneficiary held the position of Operational Support 
Director for its Brazilian parent company from May 2, 2006 until November 30, 2008, at which time he 
transferred to the United States in L-lB status. In a letter dated November 3, 2010, the foreign entity stated 
that, during his tenure, the beneficiary successfully managed large projects for international organizations 
such as With respect to the beneficiary's specific duties, the foreign entity 
stated: 
[I]n his position, as the Operational Support Director, [the beneficiary] had the full 
authority over all the management of the Operational Support Division . He was 
responsible for directly supervising six subordinate managers and through these managers 
he was indirectly responsible for employees and contract employees of the entire 
Operational Support Division, at all of its levels. [In] his position, he was also indirectly 
responsible for all employees of the company's contractors and business partners 
working with our organization, or with our clients, under our responsibility. The 
(b)(6)
Page 14 
NON-PRECEDENT DECISION 
managers who he was directly responsible for directing were the Technical Services 
Manager, the Maintenance Services Manager, the Logistics Manager, the Information 
Technology Manager, the Human Resources Manager and the Health, Safety and 
Environment Manager. 
The petitioner further explained that the beneficiary's various subordinate managers were responsible for 
supervising different aspects of providing specialized technical services to the petitioner's clients. The 
petitioner listed the various qualifications and skills deemed necessary to the position, including but not 
limited to, experience and knowledge in operations on deep and ultra-deep waters, the ability to direct plans 
that improve revenue and profit, and the ability to drive change and to build consensus. 
The petitioner submitted a copy of the foreign entity's organizational chart, which identifies a total of 22 
employees, all with managerial job titles. The chart depicts the beneficiary as Operational Support Director, 
reporting to the company's Executive Director, with six subordinate employees as stated in the foreign 
entity's letter. 
The petitioner also provided copies of the beneficiary's monthly "Statements of Payment of Salary" issued 
by the foreign entity for the period December 2007 to November 2008, which indicate his job title as 
"Director of Operational Support." 
In the NOID, the director advised the petitioner that Department of State records indicated that the 
beneficiary stated on an application for a nonimmigrant visa in July 2008 that he worked for 
(hereinafter ) as a chemical engineer. This information conflicted 
with the petitioner's claim was employed as the foreign entity's operational support director from May 2, 
2006 through November 30, 2008 . 
In response, the petitioner explained that the foreign entity had agreements with to manage two 
major oil and gas sector projects. The petitioner states that these two agreements were the foreign entity's 
primary business beginning in 2006 , so the company assigned the beneficiary and his subordinate team to 
manage the operations at the worksite of The petitioner asserted that the job description provided 
for the Operational Support Director position at the time of filing was entirely accurate. It also provided 
additional information regarding the specific areas the beneficiary managed specific to each 
project, and copies of the foreign entity's contracts with 
The petitioner provided contracts between and evidencing a contractual relationship 
between the parties with respect to crack repair on subsea tanks and a power point presentation from 
confirming the foreign entity's role as a subcontractor on the revamp of a offshore 
drilling operation. The petitioner asserted that the beneficiary's duties were primarily managerial in nature. 
As additional evidence of the beneficiary's one-year of employment with the foreign entity, the petitioner 
provided copies of the beneficiary's monthly "Receipts of Payment of Salary" for the period of July 2006 
through September 2008 . These documents appear to contain much of the same information as the 
"Statements of Payment of Salary " covering the same period which were submitted at the time of filing . 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
However, the two sets of documents are quite different in appearance. The receipts identify the beneficiary 
as "manager of operational support" rather than "director of operational support." Both sets of documents 
indicate on their face that they were generated by the foreign entity's human resources department, however, 
they contain slightly different information which raises questions regarding their validity. For example, both 
the "receipts" and the "statements" have a "code" field in the upper left section which appears to be an 
internal employee number. The code on all of the receipts is ' and the code on the "statements" is 
There are also some differences in the reported financial information. For example, for the 
month of December 2007, both the statement and the receipt indicate that the beneficiary's gross salary was 
5,444.16 Brazilian reals. However, the statement of salary indicates "Sal. Cont. INSS" as 2,894 .27, "Base 
Calc. IRRF" as 5,125.79 and "FGTS Month" as 462.75. The corresponding figures on the salary receipt for 
the same month were: 5,144.16, 5,144.16 and 
435.53 . Discrepancies in the figures reported in these fields are 
repeated in most of the documents. For the month of April 2008, the net 'payment amount was 4,287.97 on 
the statement of salary and 4,097.50 on the receipt of payment of salary. 
The director denied the petition, concluding that the petitioner failed to establish that the foreign entity 
employed the beneficiary in a qualifying managerial or executive capacity. In denying the petition, the 
director acknowledged the petitioner's explanation regarding the beneficiary's response on a nonimmigrant 
visa application that he worked for However, the director observed that there was nothing in the 
initial evidence to suggest that the beneficiary's role as the foreign entity's operational support director 
involved managing projects for the unrelated company. The director emphasized that the petitioner cannot 
make material changes to its initial claims about the nature of the beneficiary's role with the foreign entity, 
and noted that the petitioner did not support a clarifying letter from the foreign entity in response to the 
NOID. The director concluded that the beneficiary may have misrepresented relevant facts regarding the 
beneficiary's previous employment. Further, the director found that the duty description submitted for the 
operational support director position at the time of filing was vague and did not have sufficient specificity to 
establish what duties the beneficiary performed on a day-to-day basis. 
On appeal, counsel asserts that the director erred in concluding that the petitioner misrepresented material 
facts with respect to the beneficiary's foreign employment and submits additional evidence of the foreign 
employer's operations and financials , an organizational chart, supporting foreign payroll documentation, and 
other evidence relevant to the foreign employer. 
The additional evidence submitted by counsel IS not persuasive. Upon review of the petition and the 
evidence, and for the reasons discussed herein, the petitioner has not established that the foreign entity 
employed the beneficiary in a managerial or executive capacity for at least one of the three years preceding 
the beneficiary's admittance to the United States on a nonimmigrant visa. 
First, the petitioner has submitted insufficient and inconsistent evidence relevant to the period of the 
beneficiary's claimed employment with the foreign employer. The petitioner has provided two conflicting 
foreign organizational charts thereby casting doubt as to the foreign employer's actual organizational 
structure and the beneficiary's role therein. The petitioner submitted an organizational chart in support of the 
petition reflecting that the foreign employer had a board of directors with three members overseeing an 
Executive Director. The executive director is reflected as overseeing five subordinate managers, including a 
(b)(6)
NON-PRECEDENT DECISION 
Page lb 
commercial director, an administrative division manager, and operational support director (the beneficiary), 
an operations director , and a special projects director. The beneficiary is shown to have six managerial 
subordinates including a technical services manager, a maintenance services manager, a logistics manager, 
an information technology manager, a human resources employee, and a health, safety, and environmental 
manager. In total, the foreign organization chart submitted in support of the petition reflected twenty-two 
managerial employees . 
On appeal, the petitioner submits another organizational chart for the foreign entity dated "June 2007" that is 
materially different than that submitted in support of the petition. The organizational chart submitted on 
appeal identifies a President with five subordinate employees, including one devoted to "SMS," a 
commercial vice president , an employee devoted to "finances," a "manager of operations" , and "manager of 
operations support"(the beneficiary). Reporting to the operations manager is an employee devoted to 
"onshore operations" and another assigned to "operations offshore." The chart indicates that the beneficiary 
had six subordinates, but these subordinates have titles varying from those reflected in the original 
organizational chatt. Specifically, the beneficiary's subordinates are identified as holding the positions of 
"contracts," "planning," "IT," "logistics ," "human resources," and "GNCQ." Additionally, the 
organizational chart lists a total of only 14 employees . Again, it is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to 
where the truth lies. Doubt cast on any aspect of the petitioner's proof may, of course , lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition . Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Further, the petitioner has not submitted sufficient evidence to support the beneficiary ' s managerial capacity 
from May 2, 2006 through November 30, 2008 . In fact, the majority of the submitted evidence regarding the 
foreign employer's operations post-dates the beneficiary's claimed tenure with the foreign entity. For 
instance, the petitioner submitted substantial payroll documentation for the foreign employer. However, this 
payroll documentation is from 2012, and is not relevant to the beneficiary's asserted period of employment 
with the foreign employer from 2006 through 2008. Given the discrepancies in the submitted organizational 
charts, the petitioner has not submitted sufficient supporting documentation to establish that the beneficiary 
oversaw supervisory, managerial or professional subordinates as necessary to establish him as a manager or 
executive . In fact , the payroll documentation submitted for the foreign employer on appeal includes none of 
the asserted managerial employees listed in either organizational chart provided for the foreign company. 
For example, the foreign entity' s payroll report for the month of January 2012 includes electricians , welders , 
scaffold assemblers, "instrumentists," welders, plumbers, and blowtorch operators. The petition er does not 
claim that there has been any change in the nature of the foreign entity's operations, so it is unclear why a 
company that previously submitted an organizational chart with 22 managers now reports no managerial 
staff . 
The petitioner has provided an explanation as to why the beneficiary indicated his employer as ' 
when applying for a nonimmigrant visa, but it has not explained why he indicated his position as "engineer" 
rather than operations support director or "project manager" if that was his role at the client's site. While the 
(b)(6)
NON-PRECEDENT DECISION 
rage 11 
petitioner has submitted payroll statements and receipts for the beneficiary's claimed period of employment 
abroad, as addressed above, these too contain inconsistencies. 
Finally, as noted by the director, the petitioner has provided two different position descriptions for the 
beneficiary's foreign position of operations support director. There was no information in the original 
description to suggest that the beneficiary was assigned to manage a project or projects at a client site, and 
the petitioner provided no additional supp01ting information from the foreign employer to support the 
beneficiary's assignment to Spartacus. Going on record without supporting documentary evidence is not 
sufficient for purpose s of meeting the burden of proof in these proceedings. Matter of Soffi ci, 22 I&N Dec . 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg . Comm'r 
1972)). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcil e such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
at 591-92. 
In conclusion, the petitioner has failed to provide sufficient, consistent supp01ting evidence to establish that 
foreign entity employed the beneficiary in a managerial or executive capacity for one of the three years 
preceding his admission to the United States as an L-IB nonimmigrant. For this additional reason, the appeal 
will be dismissed . 
C. Foreign employer doing business 
The next issue to be addressed is whether the petitioner has established that the foreign employer is doing 
business as defined in the regulation s. See 8 C.P.R. § 205.5(j)(2) . 
The director's denial on this ground was based upon the petitioner's failure to provide sufficient evidence of 
its operations in response to the director ' s NOID . Specifically, the director requested: (1) evidence to show 
that the foreign organization conducted regular, systematic, and continuous provision of goods and/or 
services; (2) receipts , invoice s, and detailed report s to show that the foreign organization traded or exchanged 
goods or services; and (3) a copy of the foreign organization's import/export license, and contracts or 
agreements with shipping and receiving companies. The director acknowledged that the petitioner had 
submitted certain translated evidence, including an amendment to the foreign employer's articles of 
organization dated January 19, 2010, a foreign employer tax declaration for 2011, "fiscal notes" from the 
to the foreign employer , a statement of financial results from 2009 and foreign 
company bank statements. However, the director concluded that, although the documents were translated, the 
petitioner had failed to demonstrate that the translations were certified consistent with 8 C.P.R. § 103.2(b)(3), 
and as result, had failed to demonstrate with sufficient evidence that the foreign employer was doing business 
as defined by the regulations . 
Based on a review of the record, the AAO concludes that the petitioner has submitted sufficient evidence to 
establish with a preponderance of the evidence that the foreign employer is doing business. 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
On appeal, the petitioner provides certified translations of the following foreign company documents: (l) 
service agreements form 2010 and 2011 between the foreign employer and a com pan) (2) 
numerous "invoices" from the dating from 2009 through 2013, (3) substantial payroll 
documentation relevant to the foreign employer trom 2011 and 2012 indicating that the foreign employer, 
and (4) a statement from the Brazilian Ministry of Treasury reflecting that the foreign employer earned 
4,079,571.79 reals in gross revenue in 2012. 
Upon review of the totality of the evidence, the petitioner has demonstrated that the foreign entity has earned 
significant revenues in 2009, 2011 and 2012, and that it employs a substantial number of employees. 
Further, contracts, invoices and other licensing documentation suggest that the foreign employer has, and 
continues, to conduct business in Brazil. Accordingly, the director's finding that the petitioner failed to 
establish that the foreign employer is doing business is hereby withdrawn. 
D. Finding of Fraud/Willful Misrepresentation 
The final issue to be addressed is whether the director properly entered a finding of fraud. 
The director denied the petition with a finding of "fraud or material misrepresentation" based on a 
determination that the petitioner submitted false evidence, specifically with respect to its statements 
regarding the beneficiary's employment abroad and its number of employees. The director further found that 
the petitioner misrepresented material facts with respect to the beneficiary's proposed employment. 
Upon review, and for the reasons discussed below, the AAO concurs with the director's finding of material 
misrepresentation of facts with respect to the petitioner's stated number of employees and organizational 
structure. 
The terms "fraud" and "misrepresentation" are not interchangeable. 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). 
Unlike a finding of fraud, a finding of material misrepresentation does not require intent to deceive or that 
the officer believes and acts upon the false representation. See Matter of Kai Hing Hui, 15 I&N Dec. 288 
(BIA 1975). Beyond the adjudication of the visa petition, a misrepresentation may lead USCIS 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) of the Act, 8 U.S.C. § 1182(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 
(b)(6)
Page 19 
NON-PRECEDENT DECISION 
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 immigration 
benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). The term 
"w illfully" 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 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 ofKai Hing Hui, 15 I&N Dec. t 288. 
An immigration officer will deny a visa petition if the petitioner submits evidence which contains false 
information . In general, a few errors or minor discrepancies are not reason to question the credibility of an 
alien or an employer seeking immigration benefits. See Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 694 
(9th Cir., 2003). However, if a petition includes serious errors and discrepancies, and the petitioner fails to 
resolve those errors and discrepancies after an officer provides an opportunity to rebut or explain, then the 
inconsistencies will lead USCIS to conclude that the facts stated in the petition are not true . See Matter of 
Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The director determined that the petitioner had misrepresented its number of employees on the Form I-140 . 
As previously discussed, the petitioner stated on the Form I-140 filed in November 2010 that it had 16 
employees. It submitted an IRS Form 941 for the third quarter of 2010 which indicated 16 payroll 
employees, and a Florida Form UCT-6 for the same quarter identifying the same 16 employees named on the 
organizational chart submitted at the time of filing. 
In response to the NOID, the petitioner submitted a different Form 941 for the third quarter of 2010 which 
indicated 
that the petitioner employed 11 employees, rather than 16 employees as stated on the previously 
submitted Form 941. In addition, it provided a Form 941 for the fourth qua1ter of 2010 which indicates that 
the petitioner had only six employees, rather than 16 employees, at the time the petition was filed. The 
petitioner has provided no explanation for these discrepancies, despite the director's observations in the 
notice of decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
Further, on appeal the petitioner submitted IRS Forms W-2 for 2010 which indicate that only four of the 16 
named employees claimed at the time of filing actually worked for the company during that year. There is 
simply no credible evidence to support the petitioner's claim that it had 16 employees at the time the petition 
was filed . In addition, as the petitioner later submitted evidence indicating that it actually had only six 
employees, rather than 16 employees, at the time of filing, the petitioner's claim that the beneficiary alone 
would be supervising five subordinate department managers was also not credible. The petitioner has 
offered a completely different description of the company's organizational structure on appeal. 
Based on the foregoing, it is evident that the petitioner's statement on the Form I-140 regarding its current 
number of employees at the time of filing was false. Moreover, the petitioner submitted an IRS Form 941 
and Florida Form UCT-6 which also contained false information regarding the petitioner's number of 
employees in the third quarter of 2010. 
A misrepresentation can be made to a government official in an oral interview, on the face of a written 
application or petition, or by submitting evidence containing false information. lNS Genco Op. No. 91-39, 
1991 WL 1185150 (April 30, 1991). Here, the submission of false information on the Form I-140 petition 
and in supporting quarterly tax reports in support of the Form I-140 constituted false representations to a 
government official. 
The record does not include documentary evidence substantiating that the number of current employees 
stated on the Form I -140 was accurate. In fact, the petitioner submitted evidence in response to the NOID 
and on appeal which confirms that the information provided at the time of filing on the Form I-140, was not 
accurate . The burden of proof remains with the petitioner to show by a preponderance of the evidence that a 
material misrepresentation was not committed in these proceedings. See Matter of Ho, 19 I&N Dec. at 589. 
The petitioner has not met that burden. The preponderance of the evidence indicates that the petitioner did 
not have 16 employees, nor did it employ 12 of the 16 people identified by name on the organizational chart 
and Florida Form UCT -6 submitted at the time of filing or at any time in 2010. 
Accordingly, the AAO finds that the petitioner willfully made the misrepresentation. The petitioner stated 
that it had 16 employees on the petition and it created the Form 941 , Form UCT-6 , and November 2010 
organizational chart identifying 16 employees. By signing the petition, the petitioner certified under penalty 
of perjury that the petition and all evidence submitted with it either initially or thereafter is true and correct. 
See the regulation at 8 C.F.R. § 103.2(a)(2), which states the following: 
An applicant or petitioner must sign his or her benefit request. However, a parent or legal 
guardian may sign for a person who is less than 14 years old. A legal guardian may sign for 
a mentally incompetent person. By signing the benefit request, the applicant or petitioner, 
or parent or guardian certifies under penalty of perjury that the benefit request, and all 
evidence submitted with it, either at the time of filing or thereafter, is true and correct. 
Unless otherwise specified in this chapter, an acceptable signature on a benefit request that 
(b)(6)
Page Ll 
NON-PRECEDENT DECISION 
is being filed with the USCIS is one that is either handwritten or, for benefit requests filed 
electronically as permitted by the instructions to the form, in electronic format. 
The petitioner's willful and material misrepresentation that it had 16 employees as of the date of filing has 
not been rebutted as the petitioner has provided inconsistent information on appeal and has failed to directly 
address the director's findings with respect to the noted inconsistencies. 
The false information and fabricated documents are material to the petitioner's claim that it will employ the 
beneficiary in a qualifying managerial or executive capacity. The petitioner's claim at the time of filing was 
predicated on a set of job duties that reflect his .supervision of five subordinate department managers. The 
petitioner identified these managers on an organizational chart dated November 2010 and submitted 
fabricated evidence of wages paid to these employees in the form of a Florida Form UCT -6 and an IRS Form 
941 for the third quarter of 2010. None of the beneficiary ' s five claimed subordinates were issued W-2 
forms by the petitioner in 2010. Further, there is no evidence that they were employed as contractors or 
inadvertently included on the Form UCT-6. In fact, when the petitioner submitted a revised 2010 
organizational chart on appeal, the five individuals identified as the beneficiary's subordinates at the time of 
filing were simply not mentioned. 
The use of fabricated documentation to establish that the petitioner has a multi-tiered organizational structure 
with subordinate managers reporting to the beneficiary is material to the adjudication of this visa petition. 
These facts are directly material to the beneficiary's eligibility under the statutory definition of "managerial 
capacity" at section 10l(a)(44)(A) of the Act. The petitioner's Form 941 for the quarter in which the petition 
was filed shows it actually employed only six workers at the time of filing , whereas the petitioner initially 
claimed that the beneficiary's division alone comprised five department managers. This misrepresented 
information regarding the company's staffing and structure casts doubt on the job description submitted for 
the beneficiary . 
The petitioner's submission of falsified documentation in support of the petition 1s a material 
misrepresentation knowingly made. The petitioner's director and CEO signed the visa petition as the 
corporate officer of the petitioning company, certifying under penalty of perjury that the visa petition and the 
submitted evidence are all true and correct. See section 287(b) of the Act, 8 U.S.C. § 1357(b); see also 8 
C.F.R. § 103.2(a)(2). The signature portion of the Form I-140, at part 8, requires the petitioner to make the 
following affirmation: "I certify, under penalty of perjury under the laws of the United States of America, 
that this petition and the evidence submitted with it is all true and correct." On the basis of this affirmation, 
made under penalty of pe1jury, the AAO finds that the petitioner willfully and knowingly made the 
misrepresentation. 
The falsified evidence is material to the beneficiary's eligibility. To be considered material, a false statement 
must be shown to have been predictably capable of affecting the decision of the decision-making body. 
Kungys v. U.S., 485 U.S. 759 (1988). In the context of a visa petition, a misrepresented fact is material if the 
(b)(6)
NON-PRECEDENT DECISION 
.Page ZL 
misrepresentation cuts off a line of inquiry which is relevant to the eligibility criteria and that inquiry might 
well have resulted in the denial of the visa petition. See Matter of Ng, 17 I&N Dec. at 537 . The 
misrepresentation in this matter cut off a potential line of inquiry regarding the beneficiary's actual role and 
level of authority in the company. The AAO concludes that the petitioner's misrepresentations were material 
to the beneficiary's eligibility. 
By filing the instant petition and submitted false information regarding its number of employees and 
organizational structure, the petitioner has sought to procure a benefit provided under the Act through the 
willful misrepresentation of a material fact. The AAO will enter a finding that the petitioner made a willful 
material misrepresentation. 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here , that burden has not been met. 
ORDER: 
FURTHER ORDER: 
The appeal is dismissed. 
The AAO finds that the petitiOner knowingly submitted documents 
containing false statements in an effort to mislead USCIS and the AAO on 
an element material to their eligibility for a benefit sought under the 
immigration laws of the United States.