remanded EB-1C Case: Consulting Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-W-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT . 25, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , identifying itself as consulting services provider , originally sought to permanently 
employ the Beneficiary as its "legal supervisor" 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). 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 with a finding of fraud 1 and willful 
misrepresentation of a material fact against the Petitioner. The Director stated that the Petitioner 
offered false information about the following: ( 1) its date of incorporation thereby misrepresenting 
the period of time it had been doing business prior to filing this petition; and (2) the Beneficiary's 
employment abroad for one year during the three-year period that preceded the filing of this petition . 
In addition, the Director found that the Petitioner did not demonstrate that: (1) it had a qualifying 
relationship with the Beneficiary's foreign employer; (2) the Beneficiary was employed abroad by the 
Petitioner's affiliate and that such employment was in a managerial or executive capacity; (3) the 
Beneficiary's proposed employment in the United States would be in a managerial or executive 
capacity; (4) the foreign organization is doing business; and (5) it had the ability to pay the 
Beneficiary's proffered wage starting with the date this petition was filed. See generally 8 C.F.R. 
§ 204.5(j)(3). 
On appeal, the Petitioner reiterates its request to withdraw the petition , pointing to a previously 
submitted withdrawal request and noting that it no longer seeks to employ the Beneficiary and 
therefore does not wish to pursue approval of this petition. The Petitioner also disputes the Director's 
findings of fraud and willful misrepresentation of material facts , contending that the penalty for these 
findings is "unfair" given the Petitioner's desire to withdraw the petition . 
Upon de nova review, we find that the Petitioner withdrew the petition before the Director's decision 
and that the Director erred by not accepting the request. The petition must be deemed withdrawn. See 
8 C.F.R. § 103 .2(b )( 6) ("an applicant or petitioner may withdraw a benefit request at any time until a 
1 Despite making this finding, the Director did not offer an analysis addressing each underlying element of fraud. 
Therefore, the Director did not support this finding. 
Matter of H-W-C-
decision is issued by USCIS"); see also Matter of Cintron, 16 I&N Dec. 9 (BIA 1976) (holding that a 
Director's refusal to consider a petition withdrawn was erroneous). 
As the petition has been withdrawn, we have no jurisdiction to reach either the merits of the petition 
or the findings of fraud and willful misrepresentation on appeal. See 8 C.F.R. § 103.2(b)(l5) ("a 
withdrawal may not be appealed"). If the Petitioner had wanted to challenge the Director's proposed 
findings, it should have availed itself of the opportunity to respond to the Director's Notice oflntent 
to Deny (NOID). As stated in the NOID, foregoing a response does not relieve the Petitioner of its 
obligation to resolve critical evidentiary inconsistencies, which, if unresolved, could lead to a finding 
of material misrepresentation. Therefore, although the merits of the Director's eligibility findings are 
now moot based on the Petitioner's choice to withdraw the petition, the same cannot be said of the 
Director's finding of material misrepresentation, which can stand independently. Regardless of the 
withdrawal or a finding that the issues of eligibility are now moot, the facts and circumstances 
surrounding the material misrepresentation may impact future benefit requests. Id. ("Withdrawal ... 
shall not itself affect [a] new proceeding; but the facts and circumstances surrounding the prior benefit 
request shall otherwise be material to the new benefit request."). 
Notwithstanding our finding that the petition has been withdrawn, we recognize that the Director erred 
in his refusal of the withdrawal; that error led the Petitioner to file the present appeal. Accordingly, 
we will remand this matter to the Director so that he may treat the appeal as a motion to reopen or 
reconsider the findings of willful misrepresentation of a material fact. 
ORDER: The matter is remanded for the entry of a new decision consistent with the foregoing 
analysis. 
Cite as Matter of H-W-C-, ID# 1989563 (AAO Oct. 25, 2019) 
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