dismissed EB-1C Case: Window Fabrication And Installation

u~s. CitiZe11ship 
and Immigration 
Services 
MATTER OF S-W-CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 27, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER· 
The Petitioner, a window fabrication and installation business, seeks to permanently employ the 
Beneficiary as its president under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C . 
. § l 153(b)(l)(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: (I) it would employ the Beneficiary in a managerial or executive capacity 
in the United States; (2) the Beneficiary was employed abroad in a managerial or executive capacity; 
(3) it has a qualifying relationship with the Beneficiary's last foreign employer; and ( 4) it and the 
foreign employer continue to do business as defined in the regulations. Further, the Director 
determined that the Petitioner had willfully misrepresented material facts with respect to its claimed 
qualifying relationship with. the Beneficiary's foreign employer and with respect to the staffing 
levels of the U.S. and foreign entities. 
On appeal, the Petitioner claims that the Director did not fully consider the evidence it submitted in 
response to a notice of intent to deny (NOID) and contends that the Director improperly determined 
that it willfully misrepresented material facts. 
Upon de nova review, we will dismiss the appeal. However, we find that the Petitioner established 
that it and the foreign entity are doing business and therefore withdraw the Director's adverse finding 
with respect to that issue. 1 In addition; we will withdraw the Director's finding of willful 
misrepresentation. 
1 We agree with the Petitioner's claim that the Director did not give full consideration to the evidence in the record in 
determining whether the Petitioner and its claimed foreign affiliate continue to do business as defined at 8 C.F.R. 
§ 204.5G)(2). · The Pe~itioner submitted sufficient relevant evidence to meet the preponderance of the evidence standard. 
Matter ofS-W- Corp. 
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)(l)(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). 
II. DEFINITIONS. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, ~r a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
"Executive capacity" is defined as an assignment within an organization in which the employee 
primarily: directs the management of the organization or a major component or function of the 
organization; establishes the goals and policies of the organization, component, or function; 
exercises wide latitude in d~scretionary decision-making; and receives only general supervision or 
direction from higher-level executives, the board of directors, or stockholders of the organization. 
Section 101(a)(44)(B) of the Act. 
The Petitioner must show that the Beneficiary will perform certain high-level responsibilities 
consistent with the statutory definitions of managerial or executive capacity. Champion World, Inc. 
v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table ·decision). In addition, the Petitioner must 
prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The first issue we will address is whether the Petitioner established that it will employ the 
Beneficiary_in a managerial or executive capacity. 
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Matter of S-W- Corp. 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which clearly 
describes the duties to be performed by the Beneficiary. Beyond the required description of the job 
duties, we review the totality of the evidence when examining a beneficiary's claimed managerial or 
executive capacity, including the company's organizational structure, the duties of a beneficiary's 
subordinate employees, the presence of other employees to relieve a beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to understanding 
a beneficiary's actual duties and role in a business. 
Accordingly, our analysis of this issue will focus on the Beneficiary's proposed duties as well as the 
Petitioner's staffing levels and reporting structure. 
A. Duties 
The initial submission did not include the required statement from the Petitioner describing the 
Beneficiary's proposed U.S. duties. In a notice of intent to deny (NOID), the Director requested a 
"definitive stat~ment" of duties and instructed the Petitioner to includ~ the percentage of time the 
Beneficiary would spend on each specific task. 
In response to the NOID, the Petitioner submitted a list of 38 duties, but did not assign percentages 
to specific tasks as requested. Instead, the Petitioner arranged the duties into five separate 
groupings, with some duties appearing twice in different sections of the descripti_on. Many of the 
listed activities were not specific enough to 'provide insight into the nature of the Beneficiary's day­
to-day duties as the president of a window fabrication and installation business. 
For example, the Petitioner provided a list of 12 duties that would require 25% of the Beneficiary's 
time. Most of these duties were vague or simply paraphrased the statutory definitions of managerial 
or executive capacity. The Petitioner stated that he will "serve at the higher level. of the 
organization"; "develop, implement and enforce policies and procedures"; "implement new 
operating procedures"; "deveiop ·strategies for business expansion"; and "plan and design new 
departments." These statements are overly broad, provided without context or elaboration, and do 
not provide insight into the specific tasks that would occupy the Beneficiary's time on a daily basis. 
There are similarly ambiguous duties throughoµt the job description. The Petitioner indicates that 
the Beneficiary will "look for opportunity areas to create new rules to help prevent future problems"; 
"maintain contact with general manager of the company to encourage a harmonious work 
·environment"; and "reform and establish company policy to regulate the activities of company." 
Reciting a 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 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990). _Here, while the 
Petitioner submitted a lengthy list of responsibilities, it did not provide the necessary detail or an 
adequate explanation of the Beneficiary's activities in the cours.e of his daily routine. 
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Matter of S-W- Corp. 
In addition, whether the broad duties attributed to the Beneficiary qualify as managerial or executive 
in nature depends in large part on whether the Petitioner established that he would have sufficient 
subordinate staff to supervise and perform the day-to-day company activities he is claimed to direct. 
As discussed further below, the Petitioner has not adequately documented to what extent subordinate 
staff would relieve the Beneficiary from significant involvement in the operational tasks required to 
operate its business. · 
The fact that the Beneficiary will manage a business as its senior employee and shareholder does not 
necessarily establish eligibility for classification as a multinational manager or executive. By statute, 
eligibility for this classification requires that the duties of a position be "primarily" managerial or 
executive in nature. Se.ction 10l(A)(44) of the Act. Even though the Beneficiary would exercise 
discretion over the Petitioner's operations and possess authority with respect to discretionary decision­
making, the position description alone is insufficient to establish his employment would be in a 
managerial or executive capacity. 
B. Staffing and Organiza_tional Structure 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, we take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. See section 10l(a)(44)(C) of the Act. 
As noted, the Petitioner operates a window fabrication and installation business. The Petitioner 
stated that it had 11 employees when it filed the petition in March 2014. It submitted an un-dated 
organizational chart depicting a total of 11 employees, including the Beneficiary, as president, 
· overseeing a general manager and a contracted accountant who supervises an in-house junior 
accountant.- The organizational chart shows a sales supervisor and a production supervisor reporting 
to the general manager. The sales department also includes a sales associate, while the production 
department includes a production manager, two cutters, a framer, and a fabricator. 
The Petitioner provided a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return, for 
the first quarter of 2014, which shows that it paid $66,942 in wages to 11 employees. It also 
provided copies of its Form W-2s issued in 2014 to 12 individuals in 2014. The Petitioner did not 
provide evidence of wages paid to the junior accountant, and it appears that two workers who 
received W-2s were hired subsequent to the time of filing. Three employees, including the sales 
supervisor, sales associate, and production manager, earned wages commensurate with part-time or 
partial-year employment. · 
While the Petitioner showed that it likely employed as many as 11 employees at the time of filing, 
the record does not establish that the company has maintained that staffing level. In the fourth 
quarter of 2014, it reported that it paid $36,686 to eight employees. At the time the Petitioner 
responded to the Director's NOID in 2017, its most recent Texas quarterly wage report showed only 
six employees, at least two of which appeared to be part-time. Four of these individuals were not 
listed on the original organizational chart; only the Beneficiary and the framer remained on· the 
payroll. 
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Matter ofS-W- Corp. 
The Petitioner did not submit an updated organizational chart depicting these significant changes in 
its staffing levels and structure, acknowledge the reduction in staffing, or explain how a staff of five 
subordinates would be able to relieve the Beneficiary from significant involvement in the company ' s 
day-to-day operational activities. 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. § l03 .2(b)(l). 
The statutory definition of "managerial capacity " allows for both "personnel managers " and 
"function managers ." See section 101(a)(44)(A) of the Act. The Petitioner does not claim that the 
Beneficiary will manage an essential function, but does emphasize that he will supervise personnel. 
Per·sonnel managers are required to primarily supervise and control the work of other supervisory , 
professional, or managerial employees. Contrary to the common understanding of the word 
"manager," the statute plainly states that a "first line supervisor is not considered to be acting in a 
managerial capacity merely by virtue ofthe supervisor's supervisory duties unless the employees 
supervised are professional. "2 Id. If a beneficiary directly ·supervises other employees, the 
beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 CTR . § 204.5U)(2). 
The Petitioner submitted position descriptions for only three subordinate positions - the general 
manager, the accountant (who was identified as an outside independent contractor), and the junior 
accountant. As noted , the Petitioner did not provide evidence that it employed the junior accountant 
at the time of filing as this individual, who was claimed to be employed in-house, did not receive a 
Form W-2 in 2014 or appear on the Petitioner's payroll records. 
The Petitioner stated that the contracted accountant documents financial transactions, analyzes 
financial reports prepared by the in-house accountant, maintains accounting controls by 
recommending policies to the president, audits financial documents, and prepares special financial 
reports by collecting and analyzing account information and trends. However, the Petitioner did not 
submit a copy of its contract with the accountant, invoices, evidence of payments made to him, or 
other evidence in support of its claim that he was engaged to provide these services·. In fact, the 
Petitioner reported only $2000 in accounting expenses on its 2014 tax return. We acknowledge that 
the Petitioner's quarterly and year-end tax returns were prepared by the claimed accountant, who 
works for but we cannot determine that he performs other services for the 
Petitioner beyond tax preparation, which is not among his claimed duties. Therefore, the Petitioner 
has not established that the Beneficiary would be supervising a professional accountant or junior 
accountant as part of his regular routine. 
\ 
2 To determine whether a beneficiary manages professional employees, we must evaluate wh;ther the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation"). Section 10 I (a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." 
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Matier ofS-W- Corp. 
The Petitioner documented its employment of the general manager at the time of filing, but it is 
unclear whether the position remained filled while the petition was pending, as the .evidence reflects 
that this individual left the company early in 2015. Further, although the Petitioner depicts the 
general manager as overseeing both the production and sales departments, the duty description for 
the position resembles that of a project supervisor ·and it is unclear exactly what the position would 
entail within the context of the Petitioner's business. The Petitioner indicates that the position 
"monitors and coordinates with" the production and sales supervisors to keep track of project status, 
but does not include clear supervisory duties. In addition, the Petitioner stated that the general 
manager "assists in frame, cutting, and fabricating where necessary due to order volume." The , 
Petitioner did not establish that the position was managerial as claimed, nor did it establish that a 
bachelor's degree was required to perforin the stated duties. 
For the foregoing reasons, the Petitioner has not established that the Beneficiary would be employed 
primarily as a personnel manager. 
The Petitioner has also claimed that the offered position will be in an executive capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and 
that person's authority to direct the organization. Section 10l(a)(44)(B) of the Act. Under the 
statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization, and they must primarily focus on the broad goals and policies of the 
organization rather than the day-to-day operations of the enterprise. An individual will not be 
· deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. 
Here, we cannot overlook the fact that the size of the Beneficiary's subordinate staff has been 
reduced from ten workers to five workers, only two to three -of which were working full time, at the 
time of the NOID response. The Petitioner did not document how five subordinates would perform 
most of the company's day-to-day operational and' administrative tasks, so that the Beneficiary 
would be able to focus primarily on the company's broad goals and policies. 
Section 101(a)(44)(C) of the Act requires we take into account the reasonable needs of the 
organization in light of the overall purpose and stage of development of the organization if staffing 
levels are used as a factor in determining whether an individual is acting in an executive capacity. 
However, it is appropriate to consider the size of the petitioning company in conjunction with other 
relevant factors, su~h as the absence of employees who woulp perform the non-managerial or non­
executive oper;:ttions of the company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
As addressed above, the Petitioner has not established that it maintains sufficient subordinate staff to 
perform many of the actual day-to-day operations of the company. The Petitioner identified 12 
positions on its organizational chart but employed only 5 to 6 workers in the first half of 2017. We 
cannot tell which positions were eliminated or remained vacant while the petition was pending. 
Even when fully staffed, the Petitioner did not provide position descriptions for most of its staff and 
. . 
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Matter of S-W- Corp. 
we cannot determine who, if anyone, was responsible for purchasing materials, delivering and 
installing completed windows, and performing day-to-day clerical, bookkeeping, and administrative 
duties. 
For the reasons discussed above, the Petitioner has not established that the Beneficiary would be 
sufficiently relieved from involvement in the day-to-day operations of the company , despite his 
senior position in the company hierarchy. Accordingly , the Petitioner has not met its burden to 
show that his duties would be primarily managerial or executive in nature. 
IV. EMPLOYMENT ABROAD IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The next issue is whether the Petitioner established that the Beneficiary was employed abroad in a 
managerial or executive capacity. The Petitioner indicates that the Beneficiary was employed as 
president of its claimed foreign affiliate , from 2007 until March 2011. The foreign 
entity operates a compressed natural ~as refueling station in Pakistan. 
A. Employment Capacity 
At the time of filing, the Petitioner stated that the Beneficiary's duties included: directing and 
coordinating marketing activities and policies ; directing development and evaluation of market 
strategies; hiring and overseeing the daily activities of a general manager , manager and accountant; 
evaluating the financial aspects of the business; dir~cting market research studies and analyzing their 
results; and overseeing sales forecasting and strategic planning. 
The Petitioner submitted an undated organizational chart depicting 11 employees subordinate to the 
Beneficiary, including a chief accountant, general manager, manager, compressor recharger, helper , 
operators, and several "dispenser/cleaner" staff. The Petitioner also submitted a partial copy of an 
undated "Office Attendance Register" which it referred to as the foreign entity's payroll record, and 
which listed the 11 names that appeared on the organizational chart.3 Finally, it submitted position 
descriptions for the chief accountant, general manager, and manager. 
In the NOID, the Director requested a more detailed description of the Beneficiary's duties abroad 
with the percentage of time spent on each specific tasks , as well as an organizational chart with 
supporting evidence demonstrating that the foreign entity employed the personnel needed to relieve 
the Beneficiary from significant involvement in non-managerial or non-executive duties . . 
In response, the Petitioner submitted an expanded job description for the Beneficiary's position 
abroad which resembles the description provided for the U.S. position in structure and content, and 
is deficient for the same reasons already discussed above. The Petitioner provided a list of 43 duties 
arranged into seven different groupings, and assigned a percentage to groups of responsibilities, 
3 The Director determined that only seven of the 11 names appeared on both the organizational chart and the attendance 
register and mentioned this observation in the NOID. In our review, we accounted for the fact that the names on the 
attendance register were handwritten and sometimes difficult to read, and for some minor variations in spelling. 
.
Maller of S-W- Corp. 
rather than to specific tasks. The duties themselves were overly broad, did not provide insight into 
the Beneficiary's actual day-to-day tasks, and were provided without any context or references to the 
foreign entity's operation of a gas station. This lengthy but general overview of the Beneficiary's 
responsibilities was not the "definitive statement" of his specific daily duties that the Director had 
requested in the NOID. As noted, specifics are clearly an important indication of whether a 
beneficiary's . duties are primarily executive or managerial in nat~re, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations . Fedin Bros., 724 F. Supp . at 
1108 (E.D.N.Y. 1989), a.fl'd, 905 F.2d 41 (2d. Cir. 1990). 
The Petitioner also resubmitted the same organizational chart and un-dated office attendance 
register, which it refers to as "payroll." In a cover letter, counsel explained that this payroll was "not 
the payroll when beneficiary worked with the foreign affiliate but at the time of filing the I-140 
petition or the previous months of 2013." Counsel stated that "the organization hierarchy of the 
foreign entity has not changed from 2010-2011 to the present other than the fact that 
taken over the duties of the President from [the Beneficiary]." . 
Counsel's unsupported statements cannot meet the Petitioner's burden to establish the actual staffing 
and structure of the foreign entity during the Beneficiary's period of employment abroad. Assertions 
of counsel do not constitute evidence. Matter ol Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) 
(citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statements must 
be substantiated in the record with independent evidence, which may include affidavits and 
declarations. Here, the record does not contain probative evidence of the foreign entity's structure and 
staffing levels during the Beneficiary's period of employment abroad; the undated organizational chart 
· and attendance report are not sufficient. 
Further, even if we determined that the foreign entity employed a general manager and manager as 
claimed, the Petitioner did not submit credible job descriptions for these employe_es. For example, the 
Petitioner stated that the general manager "schedules the various production campaigns," "determines 
the quantity and delivery timing of raw materials that the Materials Manager manages," is responsible 
for "distribution of materials within the plant," and coordinates the preparation and shipment of sample 
orders. In addition, it indicated that the manager was responsible for managing "bulk loading of 
products into railcars and trucks for shipment to off-site packaging facilities," final packaging for 
"direct shipment to customers, " and purchasing and "packaging supplies for the Plant and off-site 
warehouse." These duties are not consistent with the nature of the foreign entity, which operates a gas 
station, does not employ a materials manager, does not package products for shipment, and does not 
claim to have a warehouse or plant. 
For these reasons, we agree with the Director's determination that the broad description of the 
Beneficiary's job duties abroad, without reliable evidence of the foreign entity's structure and 
staffing, is insufficient to establish that he was employed abroad m a managerial or executive 
capacity. 
8 
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Maller ofS-W- Corp. 
B. One Year of Employment Abroad 
Although not addressed in the Director's decision, the Petitioner has not established that the 
Beneficiary's had at least one year of employment abroad during the relevant time period. 
If a beneficiary is already in the United States working for the same employer or affiliate of the firm 
or corporation by which the beneficiary was employed overseas , the petitioner must establish that 
the beneficiary was _employed by that entity for at least one year in the three years preceding his or 
her entry as a nonimmigrant. 8 C.F.R. § 204 .5(j)(3)(i)(B). 
The Beneficiary was admitted to the United States as a visitor in March 2011, granted a change of 
status to that of a nonimmigrant E-2 treaty investor in October 2011, and remained in the United 
States in E-2 status at the time of filing in March 2014. However , his E-2 visa authorized his 
employment with a company called not with the Petitioner, despite 
evidence in the record indicating that he has been on the Petitioner ' s payroll since the last quarter of 
2012 . The record does not contain evidence that the Beneficiary has been employed by 
according to the terms of his approved E~2 visa petition , or evidence that 
has a qualifying relationship with the foreign employer. If these two conditions are not 
met, the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) does not apply, and the Petitioner would need to 
instead establish that the Beneficiary was employed by _a qualifying entity abroad in the three years 
immediately preceding the filing of this petition in 2014. 
Further , there is evidence in the record that raises questions regarding the Beneficiary's role with the 
foreign entity in the years preceding his 2011 entry to the United States . The Petitioner stated that 
he was a founding partner and wo~ked for from 2007 to 2011 . However, the Petitioner 
provided evidence that the Beneficiary filed his foreign tax returns as a sole proprietor for the 2008 
and 2009 tax years , and listed a business addres s that is different from that provided for 
The Petitioner also provided a 2010 Pakistan tax return for which listed its owners as 
(34%) and (66%). The Beneficiary is listed as a 75% owner on 
2011 and 2012 tax returns, but it is unclear whether he served as owner and president of the 
entity for at least one year period to coming to the United States. 
Due to these unanswered questions regarding the Beneficiar y' s period of employment abroad and 
period of nonimmigrant employment in the United States, we cannot determine whether the 
Beneficiary has the required one year of employment abroad during the relevant time period. 
V. QUALIFYING RELATIONSHIP 
The next issue to be addressed is whether the Petitioner established that it · has a qualifying 
relationship with the Beneficiary's foreign employer, located in Pakistan . 
To establish a "qualifying relationship ," the Petitioner must show that the Beneficiary ' s foreign 
employer and the proposed U.S. employer are the same employer (a U.S. entity with a foreign 
9 
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Matter ofS-W- Corp. 
office) or related as a "parent and subsidiary" or as "affiliates." See § 203(b)(l)(C) of the Act; see 
also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The Petitioner has consistently claimed that it an affiliate of the foreign entity based on common 
ownership and control by the Beneficiary. Specifically, it states that the Beneficiary owns 75% of 
a partnership firm, and 100% of the petitioning corporation. The Petitioner provided 
deed of partnership from 2007 which lists the Beneficiary as the 75% owner. 
The Petitioner must establish that it and the foreign employer share common ownership and control. 
Control may be "de Jure" by reason of ownership of 51 percent of outstanding stocks of the other 
entity or it may be "de facto" by reason of control of voting shares through partial ownership and 
possession of proxy votes. Matter ofHughes, 18 I&N Dec. 289 (Comm'r 1982). 
The Director found that certain terms outlined in the foreign . entity's partnership agreement 
suggested that the Beneficiary does not exercise control over the entity despite his majority 
ownership. We disagree with this reasoning. However, as noted above, there are some 
inconsistencies in the record which raise questions as to the Beneficiary's continuous ownership of 
the foreign entity, as reported a different majority owner in its tax return for 2010, 4 and 
the Beneficiary does not appear to.have claimed partnership income in his 2008 and 2009 tax filings. 
Additional evidence would be needed to explain these discrepancies and to corroborate that the 
partnership agreement entered in 2007 remains in effect. 
For these reasons, we finding insufficient evidence to establish ,the ongoing qualifying relationship 
between the Petitioner and foreign entity. 
VI. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The remaining issue to address is whether the Director properly entered a finding of willful 
misrepresentation of a material fact. The . Director specifically found that the Petitioner had 
"attempted to qualify the beneficiary for a classification he was ineligible for by submitting a 
petition portraying itself as a multinational organization, but the evidence in Fhe record fails to show 
that the petitioner has any foreign affiliates." The Director further found that the Petitioner had 
"misrepresented information about the number of individuals that were employed at the foreign 
organization and at the U.S. petitioner." 
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 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 
4 As noted, in the 20 IO tax year, the foreign entity reported that it was owned by two individuals named 
We also note that the foreign entity's lease agreement, signed in August 2007 after the formation of the 
partnership firm, lists the two as the lessees of the gas station premises in and does not mention 
the Beneficiary. 
10 
Matter of S-W- Corp. 
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 "ten_ds 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." Maller ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, he or she must determine: 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 
qf M-, 6 l&N Dec. 149 (BIA 1954); Maller of L-L-, 9 I&N Dec. 324 (BIA 1961 ); Matter of Kai Hing 
Hui, 15 l&N Dec~ at 288. 
Due to the consequences of a finding that a foreign national has engaged in . the intentional 
misrepresentation of a material fact, we must "closely scrutinize" the factual basis behind such a 
finding. See Maller of Shirdel, 19 l&N Dec. 33, 35 (BIA 1984). 
Here, the Director's findings were based on perceived deficiencies or inconsistencies in the 
documentation submitted to establish the qualifying relationship between the two. companies and the 
staffing of each entity. 
There are several irregularities in the Petitioner's evidence, a few unresolved inconsistencies in the 
record, and insufficient evidence overall to establish the Beneficiary's eligibility for the benefit 
sought. However, there is insufficient factual support for the Director's finding that the Petitioner 
willfully misrepresented a qualifying relationship with the foreign entity or that it willfully 
misrepresented the staffing levels of either company. We cannot determine that the Petitioner made 
false representations, ·only that it has not met its burden of proof to meet several eligibility 
requirements. 
Accordingly, the Director's finding of willful representation of a material fact is withdrawn. 
VII. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative 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. The 
Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter pfS-W- Corp., ID# 2309193 (AAO Feb. 27, 2019) 
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