remanded EB-1C Case: Pharmaceuticals / Medical Devices

U.S. Citizenship 
and Immigration 
Services 
In Re: 6082754 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 3, 2020 
PETITION: Form I-140, Petition for Multinational Managers or Executives 
The Petitioner claims to be engaged in the business of manufacturing medical devices and medicines 
and distributing pharmaceuticals and dietary supplements. The Petitioner seeks to permanently employ 
the Beneficiary as its "VP of Financials and Supplies" 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 revoked approval of the petition concluding that the 
Petitioner did not establish, as required, that: (1) it 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 prior to the filing of this petition; (3) the Beneficiary would be 
employed in the United States in a managerial or executive capacity; (4) the Petitioner had the ability 
to pay the Beneficiary's proffered wage since the date of filing this petition; and (5) the Petitioner and 
its foreign affiliate have been doing business. The Director also entered a separate finding of fraud or 
willful misrepresentation of a material fact against the Petitioner and the Beneficiary. 
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 novo review, 
we find that the Director did not correctly apply the law or provide an accurate analysis of the issues . 
As such the Petitioner was not afforded a fair opportunity to contest the decision and conduct a 
meaningful appellate review. We also find that the Director did not provide an adequate 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 that cause us to question whether the following 
eligibility criteria have been met: (1) the Petitioner and the Beneficiary's claimed employer abroad 
have a qualifying relationship; (2) the Beneficiary was employed by the Petitioner's claimed foreign 
affiliate for at least one year during the relevant three-year time period; and (3) the Petitioner submitted 
valid tax returns demonstrating its the ability to pay the Beneficiary's proffered wage as of the date 
this petition was filed. Therefore, we will remand the matter for further consideration of these issues . 
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 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. See 8 C.F.R. § 204.5G)(3). 
In addition, with regard to the revocation of a previously approved petition, section 205 of the Act, 
8 U.S.C. § 1155, states: 'The Attorney General may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence ofrecord 
at the time the notice is issued, if unexplained and unrebutted, would warrant a denial 
of the visa petition based upon the petitioner's failure to meet his burden of proof. The 
decision to revoke will be sustained where the evidence of record at the time the 
decision is rendered, including any evidence or explanation submitted by the petitioner 
in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) ( citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
II. FACTS AND PROCEDURAL BACKGROUND 
The Petitioner filed the petition in March 2014 claiming that from November 2003 "to the present" 
the Beneficiary has been working as "Director of Economics and Finance" at I I, the 
Petitioner's claimed foreign affiliate. The Petitioner stated that it and) lare affiliates based on 
their majority ownership and control by a common parent entity, I I See 
8 C.F.R. § 204.5G)(2) (for the definition of the term "affiliate"). The Petitioner stated that it would 
employ the Beneficiary as vice president of financials and supplies and that it would compensate him 
at an annual rate of $60,000 under an approved petition. 
Although the petition was initially approved, after further consideration, the Director issued a notice 
of intent to revoke (NOIR) in which he questioned the Petitioner's eligibility on the basis of the 
following findings: 
1. The Petitioner's business premises could not accommodate personnel and the Petitioner was 
found as not engaging in its claimed business activity of selling pharmaceutical and medical 
supplies, but rather was found to be in the business of selling peppermint tea. The Director 
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made these determinations on the basis of information gathered by users officers dring a I 
February 2018 site visit, which included a stop at the Petitioner's business location in 
I I Florida and a telephone conversation with the landlord of the Petitioner's 
subleased premises. 
2. The record contains anomalies concerning the respective ownership documents of the 
Petitioner and its parent company, ~~--~~---~ thereby giving rise to doubt 
regarding the existence of a qualifying relationship between the Petitioner and I ~ the 
Beneficiary's claimed employer abroad. 
3. The Petitioner did not adequately describe the Beneficiary's foreign job duties and submitted 
an organizational chart for the foreign entity that was inconsistent with organizational charts 
that the Petitioner offered in support of similar petitions it filed on behalf of other beneficiaries. 
The Director also noted that three out of seven individuals claimed to be the Beneficiary's 
subordinates during his foreign employment were residing in the United States during a time 
period they were claimed to have been working abroad. 
4. The Petitioner provided a 2013 annual tax return that indicates the total of wages paid is 
inconsistent with the sum of wages indicated in the Petitioner's 2013 quarterly tax returns. The 
Director also stated that the employee names in the Petitioner's wage reports did not match the 
names of recipients to whom the Petitioner issued IRS Form W-2 wage and statements. The 
Director did not specify which quarters or tax years he found problematic or name the 
employees and recipients to whom the inconsistency applied. 
5. The Petitioner's tax returns could not serve as reliable proof of its ability to pay because they 
identified the Petitioner's form of business as selling medical supplies, "which has been 
verified by users to be incorrect." 
6. The Petitioner did not establish that it has the ability to do business at its location in a residential 
zone and provided business licenses from 2014-2016, which identified its business activity as 
"Service/Other Business ... Business Office/Bookkeeping." 1 
7. The Petitioner submitted lease agreements with an organization that does not exist and 
provided business invoices listing its owner's home address as its place of business, while 
listing the address of another business entity on its website. 
8. Since 2014, the Petitioner has issued W-2 forms showing that the Petitioner's business address 
is the same as the residential addresses of its employees. 
Although the Director emphasized the importance of an alien's accurate reporting of biographic 
information, he did not point to specific inaccuracies in the Beneficiary's submissions or specify 
inconsistencies regarding the Beneficiary's place or period of foreign employment. Rather, the 
Director cited the findings in Nos. 1, 7, and 8, above, to support the determination that the Petitioner 
submitted evidence "to circumvent the immigration laws of the United States which is a material fact 
in this case." The Director did not explain how the cited findings are material to issues concerning 
the Petitioner's eligibility nor did he separate the elements of fraud and willful misrepresentation. 
Nevertheless, the Director determined that a finding of fraud or willful misrepresentation would be 
entered against the Petitioner and the Beneficiary if the Petitioner "is unable to overcome the above 
fraud findings" and instructed the Petitioner to provide objective evidence addressing the cited 
1 Although the Director also found that the foreign entity has not been doing business for at least one year prior to filing 
this petition, he did not include an analysis to explain how he reached that conclusion nor, more impo11antly, did he 
establish that this finding is relevant to the eligibility criteria in this matter. 
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discrepancies. The Petitioner was also asked to provide evidence showing that it has a qualifying 
relationship with the Beneficiary's foreign employer, foreign payroll documents as proof of the 
Beneficiary's foreign employment, the Petitioner's quarterly tax returns from 2014-2018 and its 
annual tax returns from 2014-2017, both accompanied by corresponding IRS transcripts. 
In response, the Petitioner disputed the allegations of misrepresentation and grounds for the intended 
revocation and provided the following additional evidence: ownership and corporate documents for 
the Petitioner and its claimed parent and affiliate entities; documents pertaining to the foreign entity 
and the Beneficiary's employment with that entity; and wage and tax evidence without the requested 
corresponding IRS transcripts. The Petitioner also addressed questions concerning its business 
premises and contended that its lessor's representatives are not suitable to make assertions concerning 
the nature of the Petitioner's business. 
Notwithstanding the Petitioner's NOIR response, the Director revoked approval of the pet1t10n 
concluding that the Petitioner did not provide reliable evidence demonstrating its eligibility. The 
Director questioned the existence of a qualifying relationship based on information found in Florida's 
Secretary of State website and anomalies surrounding the ownership ofl I, the 
claimed parent ofl 1 _ I and the Petitioner, and found that I I rather than I I I lwas named as the Petitioner's owner. The Director also relied on findings from the 
USCIS February 2018 site visit and anomalies regarding the Petitioner's business address to support 
the determination that ~-------~ is not doing business and therefore cannot have "a 
qualifying business relationship with either organization, which is a separate basis for this intended 
revocation." 2 However, the Director did not: 1 adequately support his finding that the ownership or 
the business activities of.__ _______ .,.........are factors that affect the Petitioner's ownership and 
its claimed affiliate relationship with,,__ __ -t or (2) accurately interpret Florida's state website when 
he determined that the reference to ~--~'s ownership of "100% of the Investment Fund" was 
synonymous with ownership of the Petitioner's stock. 
Further, although the Director correctly noted that the Petitioner did not comply with the NOIR request 
for IRS transcripts of its quarterly and annual tax returns, which directly affects the Petitioner's 
capacity to establish its ability to pay the Beneficiary's proffered wage, the Director did not establish 
how his discussion of ancillary issues, such as anomalies pertaining to the federal employer 
identification numbers (FEIN s) of the Petitioner's tax preparers, are relevant to factors that are material 
to the Petitioner's eligibility. 
The Director also concluded that the Beneficiary was not employed abroad by the Petitioner's 
purported affiliate since 2003, as claimed, pointing to information that was gathered during an 
examination of the Beneficiary's multiple nonimmigrant visa (NIV) applications which were filed 
between 2003 and 2013. Further, although the Director outlined the elements of willful 
misrepresentation and reiterated the NOIR's discussion of the adverse information described in Nos. 
4-8 above, he did not clarify whether that information served as a basis for a finding of willful 
misrepresentation. The Director also referred to the Petitioner's submission of tax returns containing 
"false information" about the tax preparers and a "false statement" from its current accountant, 
2 The Director did not clarify which organizations the reference "either organization" applies to or explain how this 
"qualifying business relationship" is relevant to the Petitioner's eligibility. 
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deeming these deficiencies as "a misrepresentation of the facts," and concluded that the Petitioner's 
and the Beneficiary's "willful misrepresentations cut down a line of inquiry which prevented users 
from properly adjudicating the instant petition." Ultimately, the Director entered a finding of "fraud 
or willful misrepresentation of a material fact" against the Petitioner and the Beneficiary. 
III. ANALYSIS 
We find that the Director did not adequately explain the basis for a finding of fraud or willful 
misrepresentation of a material fact against the Petitioner and the Beneficiary. Further, although the 
Director correctly pointed to eligibility concerns associated with information obtained from the 
Beneficiary's NIV applications, which were outside the record of proceeding, the Director did not 
inform the Petitioner of the derogatory information in the NOIR and therefore incorrectly relied on 
that information as a basis for revoking approval of this petition. 3 Notwithstanding the Director's 
error, for reasons discussed below, we find that the Petitioner did not show that it established eligibility 
for the immigration benefit sought. 
A. Withdrawal of the Finding of Fraud or Willful Misrepresentation of a Material 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 Petitioner attempted to qualify the Beneficiary for 
a benefit that he is not eligible for by submitting the following: ( 1) lease agreements where the leasing 
party was "a business organization that does not exist"; (2) business invoices that listed the Petitioner's 
owner's home addresses as the Petitioner's business address; (3) supporting business invoices showing 
business activities that were inconsistent with findings from a users site visit; (4) inconsistent 
documents regarding the ownership of the entity with majority ownership of the Petitioner and its 
claimed foreign affiliate; and ( 5) tax documents and a corresponding tax preparer letter, both deemed 
to contain false information. The Director determined that the deficient ownership evidence of the 
Petitioner's parent entity was submitted "in order to circumvent the immigration laws of the United 
States which is a material fact." 
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)(e)(i) of the Act, 8 U.S.e. 
§ 1182(a)(6)(e)(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 
3 A petitioner must be given an opportunity to oppose the grounds alleged for revocation of the approval of the petition. 
8 C.F.R. § 205.2(b). 
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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 l&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 l&N Dec. 149 (BIA 1954); 
Matter of L-L-, 9 l&N Dec. 324 (BIA 1961 ); Matter of Kai Hing Hui, 15 l&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 evidence that is not material to the eligibility criteria. We further 
find that the Director did not provide a sound basis for finding that the Petitioner is in the business of 
selling peppermint tea, a determination that appears to have been based on observations gathered 
during a site visit and information provided by a third party - the lessor of the Petitioner's business 
premises - whose knowledge of the Petitioner appears to be based on a landlord-tenant relationship 
that was in effect at the time of the site visit. 
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, the Director relied on information obtained from the Beneficiary's NN applications, which 
were outside the record of proceeding, to make a finding of ineligibility. However, the Director did 
not include this information in the NOIR and thus did not provide the Petitioner with an opportunity 
to address the derogatory information. As such, we cannot rely on the findings that stem from the 
Beneficiary's NIV applications as a basis for dismissing this appeal. 8 C.F.R. § 205.2(b). 
B. Basis for Remand 
As noted earlier, despite our withdrawal of the Director's decision, we find that the record does not 
support a favorable determination based on factors that are material to the Petitioner's eligibility. 
1. Qualifying Relationship 
First, we find that the Petitioner's operating agreement is inconsistent with its claimed affiliate 
relationship withl I which is premised on both entities being commonly owned and controlled 
by one individual or entity. See 8 C.F.R. § 204.5(j)(2). The Petitioner claims that I I I I is the parent entity that owns and controls the Petitioner and I I Although an 
operating agreement supports its claim regarding~-------~ s majority ownrship oLthe 
Petitioner, that agreement indicates that control of the Petitioner actually rests with , a 
minority owner. 
According to the first paragraph of the operating agreement,! II is a "Managing Member," 
while I I is a "Member" only. Section 4.2 of the agreement is clear in assigning 
the power of "control, management, direction, or operation of the Company affairs" only to the 
"Managers" and further states that although "Managers may from time to time seek advice from the 
Members, [] they need not accept such advice, and at all times the Managers shall have the exclusive 
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right to control and manage the Company." As~-------~ is not deemed a "Manager," it 
has no power to manage or control the Petitioner, regardless of its majority ownership. 
With regard to s ownership and control, the Petitioner provided a certified translation of a 
document listing s stock transactions from Sel)tember 2012 through July 2014. The list 
shows that in May 2013, ~-------~ bee m s sole owner. The Petitioner has 
provided no evidence showin that anyone other than s sole owner has control over the entity 
or, more specifically, that controls~-~- as he does the Petitioner. As such, according to 
the evidence on record, while~--~ is owned and controlled by I I ownership 
and control of the Petitioner is split between two different parties with I I 
maintaining ownership, but having no control over the Petitioner. 
2. Documentary Deficiencies 
Next, we find that there are several critical deficiencies in the evidence that the Petitioner provided to 
support its claims. Most notably, we find that the Petitioner has neglected to comply with the 
Director's NOIR request for IRS transcripts of its quarterly and annual tax returns. The Director 
requested this evidence because he observed that the employees listed in the Petitioner's quarterly 
reports did not match the list of employees to whom the Petitioner issued W-2s over the same time 
period. The Director also pointed to several irregularities regarding the preparers of three of the 
Petitioner's annual tax returns, which were prepared by I I Pursuant to further 
examination, the Director discovered that the FEIN used by that tax preparer in the Petitioner's tax 
returns from 2012-2014 belonged to an entirely different entity, not I I 
We also compared the Petitioner's quarterly tax returns for 2014 and 2015 with the corresponding 
annual tax returns for the same years and found that the total amount of wages paid did not match. 
More specifically, according to the 2014 tax returns, the Petitioner claimed that it paid $179,378 in 
salaries and wages. However, the sum of wages and other compensation claimed for all four quarters 
in the 2014 wage reports totals $161,000. There is a similar discrepancy between the 2015 annual tax 
return and sum of wages indicated in the 2015 wage report; the annual tax return indicates that the 
Petitioner paid $238,422, while the wages in the four wage reports total $221,000. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Although the discrepancies 
listed above are not material in and of themselves, they cause us to question the validity of the 
Petitioner's tax documents that were used to establish its ability to pay, an issue that is material to the 
Petitioner's eligibility. As such, without the requested IRS transcripts for the relevant tax documents, 
we would not be able to conclude that the Petitioner established its ability to pay the Beneficiary's 
proffered wage, nor would we be able to gauge relevant information about the Petitioner's staff to 
establish whom it employed at the time of filing and whether its staffing composition was sufficient 
to relieve the Beneficiary from having to perform primarily non-qualifying job duties under an 
approved petition. 
In addition, the Petitioner provided numerous foreign language documents, some lacking English 
language translations, while others were submitted with translations that lacked a translator's 
certification. Any document in a foreign language must be accompanied by a full English language 
7 
translation. 8 C.F.R. § 103.2(b)(3). The translator must certify that the English language translation 
is complete and accurate, and that the translator is competent to translate from the foreign language 
into English. Id. Thus, no probative value can be assigned to foreign document that are submitted 
without a properly certified English language translation. 
3. Employment Abroad 
Finally, while the Director did not provide the Petitioner with an opportunity to address the anomalies 
associated with the Beneficiary's NIV applications and incorrectly relied on such anomalies as a basis 
for the revocation, we nevertheless find that the issue of the Beneficiary's foreign employment is 
material for purposes of establishing eligibility. Therefore, in order to show that the Beneficiary was 
employed abroad for the requisite time period, the Petitioner must resolve the discrepancies between 
claims that are part of the instant record4 and information that the Beneficiary provided in his NIV 
applications in 2013 and 2018 with regard to his foreign employment. In the 2013 NIV application, 
the Beneficiary claimed that he was employed at 1 I as manager and coordinator of 
"production activities and overall product output." In the same applic~tion, the Beneficiary stated that 
he was previously employed as "Director" at " from February 2007 to January 
2010. The Beneficiary did not include~-~ in his employment history. 
In the 2018 NIV application, the Beneficiary claimed employment at I I as "Director of the [sic] 
Economics and Finance" from November 2003 to July 2013 and at 1 I as 
"coordinator of the plant" from January 2010 to July 2013, thus indicating that there was an 
overlapping period of employment at two different entities. The Beneficiary made no mention of 
having been employed at l [" as claimed in his 2013 NIV application. 
Further, the Petitioner's supporting evidence includes the Beneficiary's resume, which indicates that 
the Beneficiary has worked almost exclusively for I I since December 2001. 5 Although the 
Beneficiary's 2018 NIV application is consistent with the Petitioner's claim regarding the 
Beneficiary's purported employment withl I it is unclear how the Beneficiary could have been 
employed atl !while simultaneously holding a position at 1 I' for ~ 
years. The Beneficiary's 2018 NIV application also states that the Beneficiary attendedl________J 
State Institute of Oriental Studies from September 2003 to July 2007, thereby indicating that for nearly 
four years the Beneficiary was engaged in educational pursuits while simultaneously holding a 
purportedly managerial position withl I 
IV. CONCLUSION 
Because of the above described deficiencies and irregularities in the supporting evidence and regarding 
the Petitioner's qualifying relationship and the Beneficiary's foreign employment and the 
irregularities, 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 Petitioner's qualifying 
4 In the Beneficiary's Form G-325, Biographic Information, the Beneficiary claimed that he was employed byl I 
the Petitioner's claimed affiliate. from November 2003 to September 2013. 
'The ,esume ;udkaces tbat v.ith lhe excephon of the Benefidary's ernprim,ent r I I· ;u lhe pus;t;uu 
of"Director" from March to May 2003. the Beneficiary worked only at and does not list any other employers. 
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relationship with the Beneficiary's claimed employer abroad, the Beneficiary's foreign employment, 
and the other enumerated evidentiary deficiencies. 
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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