dismissed EB-1C Case: Real Estate

U.S. Citizenship 
and Immigration 
Services 
InRe : 16249618 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 20, 2021 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner, a provider of rental and consulting services in real estate, seeks to permanently employ 
the Beneficiary as its "President" under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act(the Act) section 203(b )(l)(C), 8 U.S.C. 
§ 115 3 (b )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that it has a qualifying relationship with the Beneficiary's foreign employer. 
The Director also entered a separate finding of willful misrepresentation of a material fact. The matter 
is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we conclude that the Petitioner has 
not established that it has a qualifying relationship with the Beneficiary's foreign employer and we 
will therefore dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who , in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203 (b )(1 )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). The petition must also be 
accompanied by evidence demonstrating the Petitioner's ability to pay the Beneficiary's proffered 
wage at the time of filing. 8 C.F.R. § 204.5(g)(2). 
II. WILLFUL MISREPRESENTATION OF MATERIAL FACTS 
First, we will address the Director's finding of willful misrepresentation of material facts. To make a 
finding of willful misrepresentation of a material fact in visa petition proceedings, an immigration 
officer 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); 
MatterofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires that one 
willfully makes a material misstatement to a government official for the purpose of obtaining an 
immigration benefitto which one is not entitled. Matter o__fKai Hing Hui, 15 I&N Dec. at 289-90. The 
term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, 
or in an honest belief that the facts are otherwise. See Matter ofTijam, 22 I&N Dec. 408, 425 (BIA 
1998); 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 detennination that he be excluded." 
Matter of Ng, 17 I&N Dec. 536,537 (BIA 1980). 
In the present matter, the Director stated that by signing the Form I-140 under penalty of perjury and 
providing an unsigned stock certificate and evidence that was not consistent with claims made about 
the U.S. and foreign entities' respective staffing compositions at the time this petition was filed, "the 
petitioner, in this case being the beneficiary, intentionally presented [] evidence knowingly [sic] it is 
not con-ect and true in exchange for a favorable decision." The Director stated, "By claiming 
multinational entity, employing 5 individuals, and conducting a real estate business from a residential 
area, and without a website, the petitioner willfully made a false representation, and it is material to 
whether the beneficiary is eligible for the requested benefit." However, the Director did not explain 
how these findings, even if accurate, are material to a determination of the Petitioner's or the 
Beneficiary's eligibility. 
Further, the Director determined that a finding of willful misrepresentation of a material fact would 
be entered against the Petitioner and the Beneficiary, stating that "the Petitioner [] in this case is also 
the beneficiary." However, the Director did not explain the underlying reasoning for finding that the 
Petitioner "is also the beneficiary." The Director also added that the Beneficiary "has submitted false 
evidence in the form of describe what beneficiary has submitted, which misrepresents a material fact" 
However, because of the confusing nature of this statement, we cannot conclude that the Director 
formulated a clear basis for entering a finding of willful misrepresentation of a material fact against 
the Beneficiary. 
In light of deficiencies described above, we cannot affirm the Director's finding of willful 
misrepresentation against the Petitioner and the Beneficiary. We will, therefore, withdraw the 
Director's finding of willful misrepresentation of material facts. As noted earlier, however, this 
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petition does not warrant approval because the Petitioner did not establish that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
III. QUALIFYING RELATIONSHIP 
Next, we will address the Director's determination that the Petitioner did not establish that it has a 
qualifying relationship with the Beneficiary's employer abroad. To establish a "qualifying 
relationship," the Petitioner must show that it and the Beneficiary's foreign employer are the same 
employer (i.e., a U.S. entity with a foreign office) or that they are related as a '"parent and subsidiary" 
or as "affiliates." See generally section 203(b )(1 )(C) of the Act; 8 C.F.R. § 204.5(j)(3 )(i)(C). 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities. See, 
e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter of Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986);Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology Int ·z, 19 
I&N Dec. at 595. 
In the present matter, the Petitioner claims that it is the subsidiary of~--------- the 
Beneficiary's employer in Brazil. See 8 C.F.R. § 204.5(j)(2) (for definition of "subsidiary"). 
However, the Petitioner did not provide sufficient evidence consistently demonstratingthatthe foreign 
entity is the parent and owner of its issued shares. Although the Petitioner provided its articles of 
incorporation showing that it is authorized to issue I 000 shares and a corresponding stock ledger and 
tax returns for 2017-2019 listing.__ ______ __, as the recipient of the only issued stock 
certificate, a copy of the stock certificate that was submitted in support of the petition shows that it 
was unsigned and that it therefore was not in compliance with the Petitioner's own bylaws, Article 5, 
Section 5 .1, which states that when stock certificates are used as a vehicle for issuing stock, "such 
certificates shall be signed [] by the president or vice president and the secretary or an assistant 
secretary .... " Because the stock certificate contained no signatures, it cannot be deemed a valid 
instrument for conveying ownership of the Petitioner's stock to the foreign entity. Although on appeal 
the Petitioner offers a stock certificate containing the Beneficiary's signature and the date of 
incorporation, by the Petitioner's own admission, the stock certificate, as constituted when it was 
originally submitted at the time this petition was filed, contained the noted deficiency and that 
deficiency was addressed only after the defect was pointed out in the Director's decision. However, 
the Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103 .2(b)(l ). We 
further note that according to the above cited section in the Petitioner's bylaws, the stock certificate 
requires two signatures - that of the president or vice president and that of the secretary or an assistant 
secretary. The stock certificate submitted on appeal contains only one signature. Therefore, even if 
we were to focus exclusively on the latest version of the stock certificate containing the Beneficiary's 
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signature, its validity as a conveying instrument remains questionable based on the missing signature 
of a company secretary or assistant secretary. 
Further, although the Petitioner provided a fund transfer receipt as evidence that consideration was 
paid in exchange for ownership ofits stock, the receipt shows that the funds originated from an account 
belongingtol ]the Beneficiary's spouse, ratherthanl I 
the Petitioner's claimed owner. Because the Petitioner has not established tha~ I 
was the source of the funds used to purchase the Petitioner's stock, we cannot conclude that I I 
I lis the Petitioner's owner. 
On appeal, the Petitioner offers an alternative argument, asserting that even if a parent-subsidiary 
relationshif cannot be established, a qualifying relationship nevertheless exists because I I 
I _ and the Petitioner qualify as affiliates by virtue of being owned and controlled by one 
common owner - in this instance, the Beneficiary. See 8 C.F.R. § 204.5(i)(2) (for definition of 
"affiliate" . The Petitioner points to evidence showing that the Beneficiary owns the majority of 
.__ ______ ____.and explains that by virtue of owning the majority of the entity that owns the 
Petitioner, the Beneficiary indirectly owns the Petitioner, thereby making her the common owner of 
both entities. 
Although we agree with the Petitioner's assessment of what constitutes an affiliate relationship, the 
Petitioner has not provided sufficient evidence showing that it meets the required criteria. As 
ownership is a critical element of this visa classification, we may reasonably look beyond the issuance 
of paper stock certificates into the means by which stock ownership was acquired, such as 
documentation of monies, property, or other consideration furnished to the entity in exchange for stock 
ownership. Here, the wire transfer receipt that was provided as evidence of consideration furnished 
in exchange for stock ownership identifies the Beneficiary's spouse as the owner of the bank account 
from which the purchase fu:;es orjgjnated Such evidence indicates that the Beneficiary's spouse, 
rather than the Beneficiary o[ which the Beneficiary owns, 1 paid for ownership 
of the Petitioner's stock, despite the conflicting information provided in the Petitioner's tax returns, 
stock certificate, and conesponding stock ledger, all of which namel las the 
stockholder. 
On appeal, the Petitioner attempts to reso Ive this incongruity by claiming that the Beneficiary and her 
spouse are both owners of the bank account from which the purchase funds originated, thereby 
indicating that the Beneficiary, rather than her spouse alone, was a source of the stock purchase funds. 
However, the Petitioner must support its assertions with relevant, probative, and credible 
evidence. See Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). Here, the Petitioner does not 
provide evidence showing that the Beneficiary is a joint owner of the account that was the source of 
the stock purchase funds. Because this considerable inconsistency remains unresolved, the Petitioner 
has not established that the Beneficiary contributed funds towards her claimed ownership of the 
1 The record contains the foreign entity's partnership agreement and two contractual amendments, all showing that the 
Beneficiary owns 99% ofl I 
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Petitioner's stock and we therefore cannot conclude that the Petitioner and~! ______ ~I have 
an affiliate relationship where the Beneficiary owns and controls both entities. 
ORDER: The appeal is dismissed. 
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