remanded EB-1C Case: Agriculture

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 25, 2024 In Re: 26482039 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a developer and distributor of organic agricultural products, seeks to employ the 
Beneficiary as its research and development (R&D) and operations manager under the first preference 
immigrant classification for multinational managers or executives. See Immigration and Nationality 
Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that (1) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; 
(2) the Beneficiary was employed abroad in a managerial or executive capacity for at least one year in 
the three years preceding her entry as a nonimmigrant; and (3) the Beneficiary would be employed in 
the United States in a managerial or executive capacity. The Director further concluded, based on 
information obtained by U.S. Citizenship and Immigration Services (USCIS) through interviews with 
the Beneficiary and other individuals, that "the petitioner and the beneficiary ... engaged in fraud and 
misrepresentation ." The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
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 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary is coming 
to work in the United States as a manager or executive 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(i)(3)(i)(C)-(D). If a beneficiary is already in the United States working 
for an entity that has a qualifying relationship with their foreign employer, the petitioner must establish 
that the beneficiary, in the three years preceding their entry as a nonimmigrant, was employed by the 
entity abroad for at least one year in a managerial or executive capacity. See 8 C.F.R. 
§ 204.5(i)(3)(i)(B). 
II. ANALYSIS 
The Petitioner has offered the Beneficiary permanent employment in the position of R&D and 
operations manager with its Florida-based agricultural products company. It asserts that she is 
qualified to be classified as a multinational manager or executive under section 203(b )(1 )(C) of the 
Act based on her employment abroad in a managerial capacity with its Colombian affiliate from May 
2015 until November 2017. The Petitioner indicates that the U.S. and Colombian entities are affiliates, 
as defined at 8 C.F.R. § 214.2(1)(1)(ii)(L)(l), based on their ownership and control by the same 
individual. The Petitioner filed the petition in August 2019 and supplemented the record in response 
to a request for evidence (RFE) in April 2020. 
As noted, the Director ultimately denied the petition, concluding that the Petitioner did not establish 
that it had a qualifying relationship with the foreign entity, that the Beneficiary was employed abroad 
in a managerial capacity for the requisite one-year period, and that the Beneficiary would be employed 
in a managerial or executive capacity in the United States. The Director further determined that the 
Petitioner and Beneficiary had "engaged in fraud and misrepresentation." The decision reflects that 
the Director's conclusions were based, primarily or wholly, on information obtained by USCIS 
through interviews conducted with the Beneficiary, the Petitioner's owner, and other individuals in 
2022. 
On appeal, the Petitioner maintains that all eligibility requirements for the requested immigrant 
classification have been met and emphasizes that the Director did not meaningfully address the 
documentary evidence submitted in support of the petition. It further contends that the Director's 
summary of the Beneficiary's interview with USCIS officers is confusing, appears to contain several 
inaccuracies, and therefore should not have served as a basis for the denial of the petition. Finally, the 
Petitioner provides its own account of multiple USCIS site visits and telephonic interviews that 
occurred in the first half of 2022. The Petitioner denies that the petition involved any fraud or willful 
misrepresentation of material facts. 
We will withdraw the Director's decision because they did not provide the Petitioner with proper 
notice of the derogatory information that resulted in both the petition's denial on its merits and a 
determination that the Petitioner and Beneficiary willfully misrepresented facts that are material to 
eligibility for this classification. 
If a decision will be adverse to a petitioner and is based on derogatory information considered by 
USCIS and of which the petitioner is unaware, the petitioner must be advised of this fact and offered 
an opportunity to rebut the information and present information on its behalf before a decision is 
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rendered. Any explanation, rebuttal or information presented by or on behalf of the petitioner shall be 
included in the record of proceeding. 8 C.F.R. § 103.2(b)(16)(i). 
Contrary to this regulatory requirement, the Director advised the Petitioner of derogatory information 
obtained during USCIS site visits and telephonic interviews for the first time in the notice of denial. 
Accordingly, we will remand the matter to the Director for farther review, issuance of a notice of 
intent to deny (NOID) in compliance with 8 C.F.R. § 103.2(b)(16)(i), and entry of a new decision. 
On remand, the Director should ensure that the NOID provides sufficient information for the Petitioner 
to prepare a rebuttal. While the notice of denial included a short summary of the Beneficiary's 
interview responses, we agree with the Petitioner's assertion that the summary was confusing and 
lacked sufficient detail. In addition, although the Director's decision named other individuals who 
were also interviewed by USCIS and noted that their responses were inconsistent, it otherwise lacks 
details of any derogatory information obtained during these additional interviews. 
If the Director's new decision will include a finding of fraud or willful misrepresentation, the NOID 
and final decision should articulate the basis for this finding. A finding of fraud requires a 
determination that the petitioner or beneficiary 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 of G-G-, 7 I&N 
Dec. 161 (BIA 1956). For an immigration officer to find a willful and material misrepresentation of 
fact, he or she must determine that (1) the petitioner or beneficiary made a false representation to an 
authorized official of the U.S. government, (2) the misrepresentation was willfully made, and (3) the 
fact misrepresented was material. See Matter ofM-, 6 I&N Dec. 149 (BIA 1954); Matter ofKai Hing 
Hui, 15 I&N Dec. 288,289 (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 ofHealy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). A "material" misrepresentation is 
one that "tends to shut off a line of inquiry relevant to the alien's eligibility." Matter ofNg, 17 I&N 
Dec. 536,537 (BIA 1980). 
Although we are remanding this matter to the Director to ensure that the Petitioner has an opportunity 
to rebut the derogatory information discussed above, the record does not support the Petitioner's 
assertions that all eligibility requirements for this classification have been met. 
If a beneficiary is already in the United States working for an entity that has a qualifying relationship 
with their foreign employer, the petitioner must establish that the beneficiary, in the three years 
preceding their entry as a nonimmigrant, was employed by the foreign employer abroad for at least 
one year in a managerial or executive capacity. See 8 C.F.R. § 204.5(j)(3)(i)(B). Since the statute and 
regulations require that the beneficiary be employed "abroad," the foreign employment requirement 
is only satisfied by the time a beneficiary spends physically outside the United States working for a 
qualifying organization. The Beneficiary indicated on her concurrently filed Form I-485, Application 
to Register Permanent Residence or Adjust Status, that she worked for the foreign entity in Colombia 
from May 11, 2015 until November 8, 2017, a period of 912 days. 
According to Department of Homeland Security arrival and departure records, the Beneficiary spent 
601 days physically present in the United States in B 1/B2 visitor status, and only 311 days abroad, 
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during this period of 912 days. Here, because the Beneficiary spent a significant amount of time in 
the United States, she had not accrued one foll year of employment abroad in the three-year period 
preceding the date of her "entry as a nonimmigrant," which in this case is November 8, 2017. 
Accordingly, the evidence presented by the Petitioner to date does not establish that the Beneficiary 
can meet the foreign employment requirement for this classification, even if the Director were to 
determine that the Beneficiary's claimed employment abroad between 2015 and 2017, and the 
qualifying relationship between the U.S. and foreign entities, could be verified. 
III. CONCLUSION 
The Director's decision is withdrawn because they did not provide the Petitioner with adequate 
opportunity to rebut derogatory information from outside the record of proceeding prior to making a 
finding of fraud or willful misrepresentation, as required by 8 C.F.R. § 103.2(b)(16)(i). On remand, 
the Director should consider all evidence already submitted, including the evidence and claims 
submitted on appeal, issue a NOID providing adequate notice of any derogatory information 
considered and all other potential grounds of ineligibility, and enter a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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