remanded EB-1C Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 12871741 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 14, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a manufacturer of doors and windows in the marine industry, seeks to permanently 
employ the Beneficiary for the purpose of performing services as "Executive Director" for the purpose 
of fulfilling the terms of a joint venture agreement, which the Petitioner and the Beneficiary's foreign 
employer entered into. The Petitioner has petitioned for the Beneficiary 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, concluding that it was not properly filed 
because the Petitioner, i.e., the filing party, would not be the Beneficiary's prospective employer, but 
rather that the intended employer would be a 50-50 joint venture, which created in a contract between 
the Petitioner and the Beneficiary's foreign employer. The Director further found that the joint venture 
is not a legal entity and that it therefore lacks the ability to pay the Beneficiary's proffered wage or 
transact business. Notwithstanding these determinations, the Director concluded that the Petitioner 
did not establish, as required that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary's employment abroad was in a managerial or executive capacity and 
that it was for a qualifying entity; (3) the Beneficiary's proposed employment would be in a managerial 
or executive capacity; and (4) the foreign entity continues to do business abroad. The Director also 
entered a separate finding of "fraud or willful misrepresentation of a material fact." 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 conclude that the Director did not 
provide an adequate analysis to support a finding of willful misrepresentation of a material fact, 
thereby denying the Petitioner a meaningful opportunity to challenge that finding. The Director also 
incorrectly determined that the joint venture, rather than the Petitioner, is the intended employer, 
therefore leading to an incorrect analysis of the ability to pay and doing business requirements, which 
will be addressed in our discussion below.1 Notwithstanding these errors, the Petitioner did not 
demonstrate that it has a qualifying relationship with the Beneficiary's foreign employer; nor did it 
adequately address the inconsistencies in the denial regarding the Beneficiary's employment abroad. 
1 Although the Director correctly determined that the joint venture was not doing business for one year, this determination 
is not relevant for the purposed of determining whether the Petitioner is eligible for the immigration benefit sought herein. 
Accordingly, the Director's decision will be remanded for further consideration and entry of a new 
decision. 
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. BASIS FOR REMAND 
A. Willful Misrepresentation of Material Facts 
First, we will address the Director's finding of "fraud or willful misrepresentation of a material fact." 
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. at 289-90. 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 in a proper determination that he be excluded." 
Matter of Ng, 17 I&N Dec. 536,537 (BIA 1980). 
Accordingly, to make a finding of willful misrepresentation of a material fact in visa petition 
proceedings, an immigration officer 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 ofL-L-, 9 I&N Dec. 324 (BIA 1961); Matter of Kai Hing Hui, 15 I&N Dec. 
288 (BIA 1975). In addition to these three elements, a finding of fraud requires the presence of two 
additional elements. First, we must establish that the party making the false representation of a 
material fact did so with knowledge of its falsity and with the intent to deceive an immigration officer. 
Second, we must establish that the false representation was believed and acted upon by the officer. 
See Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). 
In the present matter, the Director made an ambiguous finding of "fraud or willful misrepresentation" 
and did not acknowledge the distinction between a finding of fraud and a finding of willful 
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misrepresentation, thereby precluding the Petitioner from being able to effectively address the finding. 
Further, although the Director determined that the Beneficiary "submitted false evidence in the form 
of statements concerning [his] past employment history, which misrepresents a material fact," the 
Director did not clarify whether a finding of fraud or willful misrepresentation was being made against 
the Beneficiary. 
Accordingly, despite identifying multiple anomalies and inconsistencies that may warrant a finding of 
willful misrepresentation of material facts, the denial does not clearly make that finding, nor does it 
clearly state whether that finding applies exclusively to the Petitioner or whether it applies to the 
Beneficiary as well. 
B. U.S. Employer 
Next, we tum to the issue of identifying the Beneficiary's intended U.S. employer. 
The Petitioner,~----------~ claims to have entered into a 50-50 ·oint venture 
agreement with the Beneficiary's claimed foreign employer,.___ ......... ___,,,,----.....,,....--~-----r--__._, 
In a supporting cover letter, the Petitioner stated that the Beneficiary would perform services for...,____..., 
I I the joint venture, by exercising veto power over the joint venture on behalf of the foreign 
employer. Further, although the Petitioner claimed that it has the ability to pay the Beneficiary's 
proffered wage, it stated that "the profits realized by the joint venture" would be the source of the 
remuneration. Despite these anomalies, the Petitioner stated, both in its response to a notice of intent 
to deny (NOID) and on appeal, that it is "the Petitioner and employer" and that it was the source of 
the Beneficiary's a job offer. 
Further, the record contains evidence which indicates that the Petitioner, rather than the joint venture, 
seeks to employ the Beneficiary. Namely, the petition identifies! I, by name 
and Federal Employer Identification Number as the intending employer and the record contains 
supporting evidence, such as the Petitioner's income tax return, farther linking the Petitioner, rather 
than the joint venture, to the job offer. 
In light of the above, we conclude that the Director was incorrect in finding that the joint venture is 
the Beneficiary's intended employer. Further, because the Director relied on this erroneous finding to 
conclude that the intended employer did not have the ability to pay and had not been doing business 
in the United States for at least one year prior to filing this petition, we hereby withdraw these 
conclusions as they do not pertain to the Petitioner and are therefore not relevant in making a 
determination regarding the Petitioner's eligibility. See 8 C.F.R. § 204.5(j)(3)(i)(D) (requiring the 
Petitioner to show that it had been doing business for at least one year prior to filing the petition); see 
also 8 C.F.R. § 204.5(g)(2) (requiring that a petitioner of an employment-based immigrant petition 
establish that it has the ability to pay the proffered wage at the time of filing.) 
2 The denial points to discrepancies that undermine the credibility of the Petitioner's claim that the Beneficiary was 
employed with I I for at least one year during the relevant three-year period prior to 
the filing of this petition. See 8 C.F.R. § 204.5(j)(3)(i)(A). 
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III. QUALIFYING RELATIONSHIP 
Notwithstanding our withdrawal of the Director's decision, the record indicates that the Petitioner does 
not have a qualifying relationship with the Beneficiary's claimed foreign employer, therefore 
precluding an approval of this petition. 
To establish a "qualifying relationship" under the Act and the regulations, 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 related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
Further, the regulation and case law confirm that ownership and control are the deciding factors in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. See Matter of Church Scientology Int 'l, 19 I&N Dec. 593 (Comm'r 
1988); see also Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 
18 I&N Dec. 289 (Comm'r 1982). 
Although the Petitioner claims to have "a subsidiary relationship" withl I 
I I the Beneficiary's claimed foreign employer, the record shows that I I is the 
Petitioner's sole owner while the Beneficiary owns the majority of the shares issued by the foreign 
entity in China. The Petitioner neither claims nor provides evidence demonstrating that it shares 
common ownership with the foreign entity. In fact, the Petitioner's claimed qualifying relationship 
with the foreign entity is based on two competing assertions: (1) that by virtue of participating in a 
50-50 joint venture with the Beneficiary's foreign employer, a qualifying relationship was created 
between the joint venture's two parent entities; and (2) that the joint venture, which the Petitioner 
deems a legal entity, is a subsidiary of the Beneficiary's claimed foreign employer. 
In the denial, the Director concluded that a joint venture agreement between the Petitioner and the 
Beneficiary's foreign employer does not result in a qualifying relationship between the two joint 
venture part1c1pants. Further, the Director found that the Petitioner did not provide evidence 
demonstrating that a legal entity or business enterprise was created as a result of the agreement. The 
Petitioner has not overcome these conclusions. 
The Petitioner contends that the "validly created joint venture" between it and the Beneficiary's 
claimed foreign employer is sufficient to create a qualifying relationship in which the joint venture 
assumes the role of a subsidiary and is a legal entity. However, the Petitioner neither claims nor offers 
evidence to show that it and the Beneficiary's claimed foreign employer are commonly owned. 
Furthermore, although the Petitioner focuses on the parent-subsidiary relationship between the joint 
venture and each of its owners, it does not point to any statute or regulation in support of the 
Petitioner's supposition. As properly noted in the Director's decision, while a petitioner and a foreign 
employer can each form a parent-subsidiary relationship with the joint venture entity they create, a 
U.S. petitioner and foreign employer do not derive a qualifying relationship with one another by virtue 
of their individual parent-subsidiary relationship with the joint venture entity. Here, although the 
record indicates that the Petitioner and the foreign entity entered a joint venture agreement, the two 
entities do not share common ownership and control and thus they do not have an affiliate or a parent­
subsidiary relationship. See 8 C.F.R. § 204.5(j)(2) (for definitions of "affiliate" and "subsidiary.") 
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In light of the previously described deficiencies, we hereby withdraw the Director's decision and 
remand the matter for farther consideration of the evidence and a new determination of the Petitioner's 
eligibility. Further, if the Director determines that a finding of either fraud or willful misrepresentation 
is warranted, the Director shall issue a new decision that ( 1) clearly identifies the finding and the party 
or parties against whom that finding is made, and (2) includes a detailed analysis highlighting the 
factors that may support that finding. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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