dismissed EB-1C Case: Retail And Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 12211118 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 9, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a company engaged in a variety of services, including communications, vending, and the 
operation of spas, salons, and boutiques, seeks to permanently employ the Beneficiary as its 
president /director 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. 
§ 1153(b)(l)(C) . 
The Director of the Texas Service Center denied the petition on multiple grounds, concluding that the 
record did not establish that: (1) the Petitioner was doing business in the United States as defined by 
the regulations; (2) the Beneficiary would be employed in the United States in a managerial or 
executive capacity; (3) the Beneficiary had been employed abroad in a managerial or executive 
capacity; (4) the Petitioner had a qualifying relationship with the Beneficiary's foreign employer; and 
(5) the Petitioner had the ability to pay the Beneficiary's proffered wage . The Director also entered a 
separate finding of willful misrepresentation of a material fact against both the Petitioner and the 
Beneficiary. The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will dismiss the appeal because 
the Petitioner did not sufficiently establish that it was doing business for at least one year prior to the 
date the petition was filed. Since the identified basis for denial is dispositive of the Petitioner's appeal, 
we decline to reach and hereby reserve the Petitioner's appellate arguments regarding the remaining 
issues raised by the Director. See INS v. Bagamasbad , 429 U.S . 24, 25 (1976) ("courts and agencies 
are not required to make findings on issues the decision of which is unnecessary to the results they 
reach"); see also Matter of L-A-C- , 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible) . 
I. LEGAL FRAMEWORK 
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 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 the alien 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. 
A United States employer may file Form 1-140 to classify a beneficiary under section 203(b)(l)(C) of the 
Act as a multinational executive or manager. 
II. DOING BUSINESS 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it had 
been doing business for at least one year prior to the filing date, as required by the regulation at 8 C.F.R. 
§ 204.5(j)(3)(i)(D). 
Doing business means the regular, systematic, and continuous provision of goods and/or services by a 
firm, corporation, or other entity and does not include the mere presence of an agent or office. 8 C.F.R. 
§ 204.5(j)(2). 
The Petitioner filed the petition on April 29, 2014. In a letter of support, the Petitioner stated that it 
initially entered the spa/salon/boutique business, but then diversified into the cell phone and vending 
machine business after purchasing a majority interest in .__ _____ ____. a Texas corporation. 
According to the Petitioner, it currently operates two spa/salon/boutique locations, four cell phone stores, 
and managed a total of 23 vending machines at various locations irj I Texas. 
The Petitioner submitted a copy of its certificate of formation, filed with the State of Texas on March 29, 
2012, as well as assumed name records for each of its salon locations. It also submitted photographs and 
copies of its business licenses and leases for its salon locations, as well as copies of various utility bills 
such as phone/cable/internet, electric/gas, and water. In addition, the Petitioner submitted copies of 
receipts for the purchase of beauty supplies to be used in the course of its salon business. Finally, the 
Petitioner submitted a copy of a contract with Groupon for the provision of discount vouchers for its salon 
services, as well as copies of the Groupon advertisements for such vouchers. 
The Director found the evidence insufficient to establish that the Petitioner had been doing business as 
required for at least one year prior to the filing date, and issued a notice of intent to deny. The Director 
noted that the record was devoid of evidence that the Petitioner conducted business operations prior to 
October 2013. 
In response, the Petitioner claimed that its acquisition of a majority interest itj I in April 
2013 established that it had been doing business for the year prior to filing, Specifically, the Petitioner 
asserted thatl I had been doing business in the field of cell phone and vending machine 
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services since 2010, and by virtue of its 51 % ownership interest in this entity, it satisfied the doing 
business requirement. 
The Director denied the petition, based, in part, on the finding that the Petitioner had not been doing 
business for at least one year as of the petition's filing date. The Director determined that the evidence 
of record, consisting mainly of invoices for the purchase of beauty supply products, did not satisfy the 
regulatory requirements. On appeal, the Petitioner reasserts its claim that it had been doing business 
throug~._ ______ _.~Y virtue of its majority ownership interest in the company, and correctly notes 
that the Director did not address this assertion in the denial. 
Upon review, we concur with the Director's determination. While the Petitioner's assertions regarding 
its ownership ofl I are acknowledged, the petitioning U.S. employer itself: rather than any 
affiliate or subsidiary, must have been doing business for at least one year. 8 C.F.R. § 204.5G)(3)(i)(D). 
The record shows thatl I has existed since 2010, but this entity is not the petitioning employer. 
Therefore, evidence relating to this entity does not and cannot show that the petitioning entity has been 
doing business for a year or more prior to the petition's filing date. 
Furthermore, the Petitioner has not provided evidence to substantiate its regular, systematic, and 
continuous provision of goods and services. The Petitioner's assumed name records for its two salon 
locations were filed on October 14, 2013, and the leases for its two salon locations began on November 
1, 2013. Likewise, its earliest invoices from vendors and local chain stores, which reflect its purchase 
of various beauty supplies and jewelry, are dated October 2013. Finally, its agreements with Groupon 
on for the provision of discount vouchers for its beauty services was not executed until December 5, 
2013. Finally, the record is devoid of documentation reflecting the Petitioner's regular provision of 
goods and services or its receipt of payments related thereto. 
Additionally, while the Petitioner also claims to be providing cell phone and vending machine services, 
the record does not support the Petitioner's claim to have acquired the other businesses. The Petitioner 
claims to have acquired four cell phone service locations as well as various vending machines located 
throughout I I through its acquisition of a majority ownership interest in~-----,--~ 
Although the Petitioner submitted some invoices froml I's various cell phone locations, these 
documents are not considered evidence of the Petitioner doing business, asl I is a viable entity 
in its own right which, according to Texas state corporate records, is still an active corporation as of the 
date of this decision. Again, the petitioning U.S. employer itself: rather than any afiiliate or subsidiary, 
must have been doing business for at least one year. 8 C.F.R. § 204.5G)(3)(i)(D). The evidence relating 
to the business operations ofl I are therefore not pertinent to this issue. 1 
1 Although the Petitioner's ownership interest inl I is not relevant for purposes of determining whether it 
was doing business for the reasons just discussed, we nevertheless note that the Petitioner did not establish its claimed 
ownership interest in this entity. The Petitioner submitted a copy of a stock certificate stating that it owned 510 shares of 
the company. However, stock certificates alone are not sufficient evidence to determine whether a stockholder maintains 
ownership and control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total number of 
shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on 
corporate control. 
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Although the Petitioner claims to be primarily engaged in the spa/salon/boutique business, the record does 
not establish that the Petitioner has done business at all. All invoices demonstrating the purchase of 
beauty supplies and jewelry, and the lease agreements for its salon locations, did not begin until October 
and November of 2013, respectively. As the regulations require the Petitioner to establish that it has been 
doing business for at least one year prior to the filing date, which in this case would be the period from 
April 30, 2013, to April 29, 2014, the record as constituted does not satisfy this requirement. By 
regulation, the mere presence of an agent or office does not qualify as doing business. See 8 C.F.R. 
§ 204.5(j)(2). 
For the above stated reasons, we find that the Petitioner has not established that it was doing business for 
at least one year prior to the petition's filing date. 
III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The final issue to be addressed is the Director's finding that the Petitioner and the Beneficiary willfully 
misrepresented information regarding the Beneficiary's work experience which is material to her 
eligibility for the benefit sought. 
Section 212(a)(6)(C) of the Act 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 immigration 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 Tijam, 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 m 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 of Kai Hing Hui, 15 I&N Dec. 
at 288. 
U.S. Department of State records indicated that the Beneficiary filed a Form DS-160, Application for 
Non-Immigrant Visa, on September 14, 2011, which instructed the Beneficiary to list all of her 
employment history for the five years prior to the filing of the application. The Beneficiary stated 
that, at the time of filing the Form DS-160, she was employed as the Head Teacher ofthel l's 
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~--~I girls branch, and was previously employed by the.,..I =-,...,,..""=""-----'I School System as an 
Assistant Academic Coordinator from October 1, 1997, to July 27, 2008. 
The Petitioner, however, states that the Beneficiary was employed abroad by the foreign organization 
in the position of Operations Manager for the period from September 2009 until May 2012, and relies 
on this claim to satisfy the requirement that the Beneficiary had at least one continuous year of 
full-time employment abroad with a qualifying organization within the three years preceding the filing 
of the petition, as well as employment in a capacity that was managerial in nature. The Petitioner 
provided copies of the Beneficiary's paystubs for this period in support of this assertion. 2 
Additionally, a Form I-485, Application to Register Permanent Residence or Adjust Status, was filed 
simultaneously with the petition. On the supplemental Form G-325-A, Biographic Information, 
submitted in support of her Form I-485 application, the Beneficiary indicates that she was employed 
by the foreign organization as its Operations Manager from March 2009 through April 29, 2014, the 
date the application was filed. 3 
The Director notified the Petitioner of this derogatory information in the notice of intent to deny. In 
response, the Petitioner submitted a response letter, drafted and signed by the Beneficiary in both her 
corporate and personal capacity, in which she states that the foreign organization is a family-owned 
business, owned equally by her brother and his best friend who she considered a "de facto" family 
member. According to the Beneficiary, "I helped out in the family business. I did not consider my 
family as my 'employer."' In addition, she stated as follows: 
I was headmistress of a school with 24 other staff persons. As such, it did not require 
too much of my time. So, I had time to spend helping my family. My title was 
Operations Manager. I did not want any compensation at all, but they insisted on 
paying me something. 
In denying the petition, the Director also issued a finding of willful misrepresentation. The Director 
( 1) stated that the finding of material misrepresentation was made with respect to both the Petitioner 
and the Beneficiary; (2) pointed to specific evidence that is deemed to conflict with the Petitioner's 
and the Beneficiary's attestations, which were also identified in the Director's discussion of material 
misrepresentation in the notice of intent to deny; and (3) explained how these evidentiary deficiencies 
are material to the Petitioner's eligibility. 
On appeal, the Petitioner argues that "there is no requirement that an application for a visa must list 
their entire work experience on the DS 160," and that the Beneficiary should not be penalized for not 
listing work in a family business setting. The Petitioner again reiterates that the Beneficiary did not 
consider herself an "employee" of the foreign organization, nor did she consider the foreign 
organization her "employer." Finally, the Petitioner indicates that the Beneficiary listed her 
2 USCTS records show that the Beneficiary entered the United States on a visitor visa on February 12, 2012, and USCTS 
records do not demonstrate that the Beneficiary depaited the United States prior to the filing of the instant petition on April 
29, 2014. 
3 The Beneficiary's claims with regard to her employment history on the supplemental Form G-325A in support of her 
Form 1-485 application directly contradict her claims on her F01m DS-160 visa application, as well as the Petitioner's 
claims in the Form 1-140 petition and supporting documents. These discrepancies remain unresolved. 
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employment as headmistress and academic coordinator on her visa application, which she considered 
professional-level employment, instead of her experience working for her family "grocery store," 
since her "professional-level employment" was more impressive. 4 
A. The Petitioner's Willful Misrepresentation of a Material Fact 
The Petitioner claimed that the Beneficiary had at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of the petition in a 
managerial capacity in an effort to procure a visa for employment of the Beneficiary under the first 
preference immigrant classification for multinational executives or managers. See 
section 203(b)(l)(C) of the Act, 8 U.S.C. § l 153(b)(l)(C). Further, the Petitioner falsely and willfully 
represented that the Beneficiary was the Operations Manager for the foreign organization from 
September 2009 to May 2012, and this statement is material to the Petitioner's requested benefit. 5 Part 
of the Form 1-140, Immigrant Petition for Alien Workers, states in pertinent part, "I certify under 
penalty of perjury under the laws of the United States of America that this petition, and the evidence 
submitted herein, is all true and correct." By signing its name under this declaration, the Petitioner 
took legal responsibility for the truth and accuracy of any evidence submitted in support of the petition. 
We agree with the Director's determination that the Petitioner made a willful misrepresentation of 
material fact to USCIS. 
B. The Beneficiary's Willful Misrepresentation of a Material Fact 
The Beneficiary indicated on her Form DS-160 that she was employed as the Head Teacher of the D I girls branch as of September 14, 2011, and was previously employed by the 
School System as an Assistant Academic Coordinator from October 1, 1997, to July 27, 
2008. In contrast, she states on the Form G-325A supplement to her Form 1-485 application that she 
was employed as the Operations Manager of the foreign organization from March 2009 until the date 
of filing. Finally, in a sifned statement submitted in her personal capacity, the Beneficiary confirms 
her employment with the_ I but states that her position allowed her "time to spend 
helping my family." She further asserts in that statement, in contrast to her statements on her 
supplemental Form G-325A, that she was not an employee of the foreign organization nor did she 
consider the foreign organization her employer. 
In light of the contradictory information presented and lack of independent, objective evidence 
regarding the Beneficiary's foreign work experience as detailed above, the statements made by the 
Beneficiary on the Form G-325A, and in her signed statement submitted in support of the petition, 
were not correct and constitute a false representation. Because the Beneficiary did not have the 
requisite one continuous year of full-time employment abroad with a qualifying organization within 
the three years preceding the filing of the petition in a managerial capacity, the Beneficiary's false 
4 Despite claiming that the Beneficiary's "professional-level employment" at the schools noted above was more relevant 
to her resume than her work with the foreign organization, this employment history was omitted from her Form G-325A. 
5 The statement submitted by the Petitioner in response to the notice of intent to deny states that because the foreign 
organization was a "family" business, the Beneficiary was not an employee, nor was the foreign organization her employer. 
These statements directly contradict the Petitioner's claims regarding the Beneficiary's foreign employment, which are 
material to eligibility in this matter. 
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attestation on the Form G-325A supplement submitted in support of her Form 1-485 application and 
within the petition constitute a false representation on the face of a written petition. 
Second, the Beneficiary willfully misrepresented material facts regarding her previous employment 
abroad. In signing the Form G-325A, the Beneficiary acknowledged that "[s]evere penalties are 
provided by law for knowingly and willingly falsifying or concealing a material fact." Additionally, 
the Beneficiary signed the Form 1-485 petition attesting to the veracity of the claims in her supporting 
documentation . In this way, the Beneficiary directly participated in the preparation and submission of 
documents that convey the false impression that she had the requisite qualifying employment abroad. 
In light of the unresolved contradictory evidence in the record regarding the Beneficiary's experience, 
we conclude that the Beneficiary's misrepresentations were willful. 
Third, the evidence is material to the Beneficiary's eligibility . Here, the Beneficiary's employment 
abroad with the foreign entity, in a capacity she claims was managerial in nature, is material to whether 
she meets the minimum requirements of the offered position. The misrepresentation regarding the 
Beneficiary's experience on the Form G-325A submitted in support of her Form 1-485 application and in 
her signed statements submitted in support of the petition cut off a potential line of inquiry regarding her 
claimed experience. See Matter of Ng, 17 l&N Dec. at 537. 
We agree with the Director's determination that the Beneficiary made a willful misrepresentation of a 
material fact in documents submitted in support of the Form 1-485 application and the Form 1-140 
petition . This finding of willful material misrepresentation shall be considered in any future 
proceeding where the Beneficiary's admissibility is an issue. 
IV. CONCLUSION 
Based on the foregoing, we will dismiss the appeal and enter a finding of willful misrepresentation of 
a material fact against the Petitioner and the Beneficiary . 
ORDER: The appeal is dismissed. 
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