remanded EB-1C Case: Baby Products

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-D-INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 27, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a retailer and wholesaler of baby products, 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. 
§ l l 53(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 entity that employed the Beneficiary 
abroad. The Director also entered a separate finding of fraud or willful misrepresentation of a material 
fact. 
On appeal, the Petitioner asserts that the Director "misapprehended the facts" and the finding of fraud 
or willful misrepresentation of a material fact is not supported by the evidence. The Petitioner 
contends that it has an affiliate relationship with the entity that employed the Beneficiary abroad. 
Upon de nova review, we find that the Director's decision did not provide an adequate analysis of the 
qualifying relationship issue such that the Petitioner was afforded a fair opportunity to contest the 
decision and to allow a meaningful appellate review. We also find that the Director did not provide 
an analysis to support the finding of fraud or willful misrepresentation of a material fact. Therefore, 
we will withdraw the Director's decision. 
Notwithstanding our withdrawal of the Director's decision, we find that the record as presently 
constituted contains anomalies and inconsistencies regarding the Beneficiary's foreign employment 
and the qualifying relationship between the Petitioner and the foreign employer. Therefore, we will 
remand the matter for further consideration of the Beneficiary ' s foreign employment and whether that 
employment was with a qualifying entity.1 
1 A copy of this remand decision h as also been sent to the Petitioner's second attorney of record, at: 
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Matter of S-D- Inc. 
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 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 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. § 204.50)(3). 
11. PROCEDURAL HISTORY 
A Proceeding Before the Texas Service Center 
The Petitioner filed the petition in April 2015 with a support letter dated January 9, 2015 where it 
claimed that the Beneficiary was employed abroad by 
,2 since May 2011. The Petitioner also submitted a statement written 
on the letterhead of • stating that the Beneficiary 
has been employed as "Vice President since [its] establishment in May 2011 to present." 
The Director issued a Notice of Intent to Deny advising the Petitioner that additional evidence was 
necessary to establish that and are the same entity. 3 In 
response, the Petitioner provided a letter from the Beneficiary's husband and president of 
the foreign entity, stating that 1s fictitious name. 
stated that is the English translation of 
Chinese name and further noted that the website www.ittmom.com and the logo both 
pertain to the same company. The Petitioner also provided further evidence pertaining to the two 
names and the ownership of the Beneficiary's claimed foreign employer. 
2 The Petitioner and its attorneys have provided numerous variations of the parent company 's name such as 
(Petitioner's January 9, 2015 support letter); 
(translated September 13, 2014 business license and other translated documents); 
(undated appeal brief); 
(Attorney September 12, 2018 letter); and 
(letter on letterhead with the same name dated February 24, 2017 and translations of corporate documents (with a comma 
after "Co.")). As the Petitioner's support letter referred to the company as 
we will refer to the parent company throughout this decision as 
3 The record shows that the Director first issued a request for evidence, instructing the Petitioner to establish that the 
Beneficiary was employed abroad in a managerial or executive capacity. 
2 
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Matter of S-D- Inc. 
The Director denied the petition concluding that the Petitioner did not establish that it and the 
Beneficiary's foreign employer have a qualifying relationship. 4 The Director determined that the 
Petitioner did not provide evidence that and are the same 
company or that is associated to the parent company as listed in the immediate petition" 
and noted that "[t]his information is attested to on the letter of support." The Director also found that 
the Petitioner provided deficient evidence regarding its own ownership. 
The Director also discussed the foreign employment claims the Beneficiary made in two nonimmigrant 
visa (NIV) applications filed in 2013 and 2014, which were not discussed in the previously issued 
Notice of Intent to Deny. Namely, the Director observed that the Beneficiary did not list the parent 
company, , as her current employer in either application. However, despite 
making these observations and noting that the Petitioner must establish that the Beneficiary was 
employed abroad by a related entity for at least one year in the three years prior to filing the petition, 
the Director did not reach a conclusion on this eligibility issue. Further, although the Director 
indicated that multiple issues would "independently form the basis for this intended denial," he pointed 
to only one issue and reiterated that the Petitioner did not establish that it formed a qualifying 
relationship with the Beneficiary's foreign employer. The Director implied that the Petitioner had 
been previously informed of derogatory information, but he did not specify the nature of that 
information or state that such information was a basis for the denial. 
The Director added a finding of "fraud or willful misrepresentation of a material fact" noting that the 
Beneficiary and Petitioner "issued conflicting testimony, under penalty of perjury, on the Form 1-140, 
to include supporting documentation while filing for benefits with USCIS." The Director did not, 
however, specify the "conflicting testimony" or discuss the specific documentation that served as a 
basis for this finding, nor did he discuss the separate elements of fraud and willful misrepresentation 
or provide an analysis discussing those elements and their application to the facts in this matter. 
Further, in the denial decision, the Director instructed the Petitioner to "[s]ubmit documentation 
indicating and are the same company and that 
the petitioner and the foreign company have a qualifying relationship." 
B. Appeal Proceeding 
The Petitioner subsequently filed an appeal disputing the denial and the finding of fraud or willful 
misrepresentation of a material fact. In the course of reviewing the appeal, we examined the record 
along with new findings that stemmed from an overseas investigation that was conducted from August 
2018 through October 2018, by the U.S. Citizenship and Immigration Services ("USCIS") 
Field Office Field Office"). The overseas investigation included site visits, a telephonic 
interview with the Beneficiary, and a review of the State Administration of Market Regulation 
(SAMR), an online database where all businesses in China must be registered. 
We issued a Notice of Intent to Dismiss and Request for Evidence (NOID/RFE) in which we asked 
the Petitioner to address anomalies and resolve inconsistences relevant to the Beneficiary 's 
4 To establish a "qualifying relationship, " a petitioner must show that the beneficiary 's foreign employer and the proposed 
U.S. 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)(l)(C) of the Act; 8 C.F.R. § 204.5G)(3)(i)(C). 
3 
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Matter of S-D- Inc. 
employment abroad within the three years prior to the date this petition was filed as well as the 
Petitioner's qualifying relationship with the Beneficiary's foreign employer. In the NOID/RFE, we 
discussed information the Beneficiary provided in NIV applications that she filed in 2012, 2013, 2014, 
and 2017. We observed inconsistencies among the NIV applications and further noted that each NIV 
application contained information about the Beneficiary's foreign employment that was in some way 
inconsistent with the Petitioner's current claims and supporting evidence. We asked the Petitioner to 
explain and corroborate the Beneficiary's employment history and association with the following 
company names referenced in the NIV applications and instant petition: 
I 
informed the Petitioner of additional observations made during site visits by the 
in order to provide the Petitioner an opportunity to rebut the information. 
Further, we 
Field Office 
In response to our NOID/RFE, the Petitioner provided additional documents and a legal brief from 
counsel denying the existence of inconsistencies. Counsel asserted that we "intentionally made false 
statements to prejudice the case," and we misinterpreted the record due to our "inability to comprehend 
the corporate world." Counsel disputed our summary of the site visit report asserting that we provided 
"false statements" and intentionally omitted information about one of the site visits in order to "skew 
the perception of the case." 5 
Counsel asserted that the Petitioner "utilizes multiple subsidiary corporate entities" and broadly 
categorized the Beneficiary and her husband as "serial entrepreneurs" who "simultaneously hold 
positions in multiple corporate entities" in which they have controlling ownership interests. Counsel 
stated that the Petitioner should not have to assume "the burden of teaching basic corporate law ... to 
government bureaucrats." Regarding the qualifying relationship issue, counsel referred us to the 
appeal brief, which stated that the Beneficiary and her husband are the controlling stockholders of the 
Beneficiary's foreign employer, with the Beneficiary owning 80% and 
her husband owning 20%, while the Petitioner's stock is 100% held by the Beneficiary. Thus, in 
counsel's words, "[t]he married couple, who under US law and thinking, are legally one entity, own 
and control the entirety of both foreign and U.S. companies." 
III. ANALYSIS 
Despite the evidentiary deficiencies in this matter, the Director made various unsupported statements 
and issued a decision that did not clearly delineate or discuss the grounds for denial. The Director also 
did not adequately explain the basis for the finding of fraud or willful misrepresentation of a material 
fact. 
A. Withdrawa l of the Findin g of Fraud or Willful Misrep resentation of a Mate rial Fact 
First , we will address the Director ' s finding of "fraud or willful misrepresentation of a material fact," 
which was premised on the determination that the Benefic iary and Petitione r "issued conflictin g 
5 Our NOID/RF E expressly stated that the field office director and an investigator in 
carried out the site visit. 
4 
rather than AAO personne l, 
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Matter of S-D- Inc. 
testimony, under penalty of perjury, on the Form 1-140, to include supporting documentation while 
filing for benefits with USCIS." 
Any foreign person 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 the Act is inadmissible. See section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 
§ l 182(a)(6)(C)(i). 
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 
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 ofM-, 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. 
Here, the Director's summary finding of "fraud or willful misrepresentation of a material fact" appears 
to have been made on the basis of "conflicting testimony" that the Director did not describe. The 
Director also neglected to separate the elements of fraud and willful misrepresentation or to discuss 
those elements within the context of the relevant factors that contributed to his finding. Further, 
although the Director relied, in part, on information obtained from the Beneficiary's NIV applications, 
which were outside of the record of proceeding, he did not provide the Petitioner with notice of the 
derogatory information. 6 8 C.F.R. § 103.2(b)(l6)(i). As there were insufficient facts to support the 
Director's finding, that finding must be withdrawn. 
B. Basis for Remand 
In order to allow the Petitioner a meaningful opportunity to appeal the adverse decision, the Director 
must provide a decision containing the specific reasons for the denial and an adequate analysis of the 
facts in the matter. See 8 C.F.R. § 103.3(a)(l) . As we e xplain below, we find that the Director' s 
decision did not satisfy this condition ; therefo re, we will remand the matter for entry of a new 
decision. 
As previousl y i ndicated , the Director' s denial instructed the Petitione r to " [s]ubmit documentation 
indicatin g and _______ are the same company and that 
6 As indicated earlier, the Notice of Intent to Deny did not contain a discussion of the Benefic iary's NIV applications from 
2013 and 2014; the Director mentioned those applications for the first time in the notice of denial. 
5 
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Matter of S-D- Inc. 
the petitioner and the foreign company have a qualifying relationship." Because the denial included 
instructions for the Petitioner to provide additional evidence, the wording suggested that the notice 
being issued was a "request for evidence" and did not clearly indicate that the notice was a denial. 
Further, the Director determined that the Petitioner did not provide evidence that and 
are related entities, despite evidence in the record indicating that a nexus 
was, in fact, established. Lastly, the Director based the decision, in part, on information that was 
discovered outside the record. Namely, the Director discussed the foreign employment claims the 
Beneficiary made in the NIV applications she filed in 2013 and 2014. Although the Director implied 
that the Petitioner had been previously informed of derogatory information, he did not specify the 
nature of that information, nor did he adequately inform the Petitioner of the NIV inconsistencies that 
were discussed in the denial. As such, the Director did not provide the Petitioner with an opportunity 
to address those inconsistencies. 
Notwithstanding the Director's errors, it does not appear that there is a qualifying relationship between 
the Petitioner and its claimed affiliate company, despite 
counsel's claims to the contrary. The Petitioner submitted evidence that it was 100% owned by the 
Beneficiary at the time the petition was filed. It also claimed that the foreign entity's parent company 
was the Beneficiary's qualifying foreign employer. Although counsel contends that only 
affiliation with the Petitioner is relevant because it is the Beneficiary's claimed foreign 
employer, he nevertheless discusses ownership and control without addressing the 
conflicting claims the Beneficiary made in her NIV applications. Namely, counsel points to 
information contained in reports generated by the 
in 2017 and 2018, which address and respective 
ownership information. 7 report indicates that at the time of the petition's filing, 
was 100% owned by 
report indicates that was its 100% owner. 
report indicates that at the time the petition was filed, the Beneficiary owned 
49% of stock and the Beneficiary's husband owned 51%. Therefore, it appears that 
the Beneficiary did not own a majority of the parent company at the time of filing, precluding us from 
finding that there is an affiliate relationship between the Petitioner and any of the Beneficiary's 
claimed employers abroad. 
Counsel also claims that owns 50% of report 
indicates, however, that at the time of the petition's filing, owned 10% and the 
Beneficiary's husband, owned 90% of that entity's shares. Therefore, it does not appear that 
which the Beneficiary claimed as her employer in her 2014 NIV application, has the 
requisite qualifying relationship with the Petitioner. 
7 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. § I 03 .2(b )(!). Since this petition was filed in April 2015, 
only information that pertains to the ownership of the Beneficiary 's employer(s) as of that date is relevant for the purpose 
of establishing eligibility. 
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Matter of S-D- Inc. 
In light of this information, the reports that counsel emphasizes do not establish that the 
Beneficiary, who owns 100% of the Petitioner's stock, was also the majority owner of either 
or ___ as of April 2015, when this petition was filed. 
We will also briefly address counsel's claim in the appeal brief that there is a qualifying relationship 
between and the Petitioner because the Beneficiary and her 
husband together own while the Beneficiary alone owns 100% 
of the Petitioner's stock. Counsel stated, "The married couple, who under US law and thinking, are 
legally one entity, own and control the entirety of both foreign and U.S. companies." We are not 
aware of, nor has counsel pointed to, any U.S. law relevant to the qualifying relationship issue that 
deems married couples "legally one entity." 
Because of the inconsistencies in the evidence regarding qualifying relationship and the Beneficiary's 
foreign employment, we cannot sustain this appeal and approve the petition, despite the errors in the 
Director's decision. Therefore, we will remand the matter for further consideration of the 
Beneficiary's employment with the foreign entity and whether she was employed for the requisite one 
year period abroad in a managerial capacity by a qualifying entity. 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. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofS-D-Inc., ID# 1437524 (AAO Mar. 27, 2019)