remanded EB-1C Case: Renewable Energy

U.S. Citizenship 
and Immigration 
Services 
In Re: 19976131 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 18, 2022 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a renewable energy company, seeks to permanently employ the Beneficiary as it Senior 
Sales Manager under the first preference immigrant classification for multinational executives or 
managers . 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 the Petitioner did not establish 
that: ( 1) the Beneficiary was employed abroad in a managerial or executive capacity prior to his entry 
into the United States as a nonimmigrant; and (2) the Beneficiary would be employed in a managerial 
or executive capacity in the United States . In addition, the Director determined that the Petitioner 
willfully misrepresented a material fact. 
On appeal, the Petitioner contends that the Director did not acknowledge assertions and evidence 
submitted in response to the notice of intent to deny (NOID) and failed to articulate the deficiencies 
in this evidence. The Petitioner asserts the Beneficiary would qualify as a manager in the United 
States and emphasizes that the Director incorrectly referred to his proposed "executive" capacity in 
the decision . 1 The Petitioner also states that the Director did not provide sufficient analysis to justify 
the determination that the Petitioner willfully misrepresented a material fact. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review , we will withdraw the Director's 
decision and remand the matter 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. 
1 Although the Petitioner maintained throughout the record of proceedings that it would employ the Beneficiary exclusively 
in a primarily manag erial capacity in the United States, the Director instead determin ed that the Beneficiary did not qualify 
under the alternative classification of executive capacity , which is governed by differ ent statutory and regulatory provisions 
and evidentiary requir ements . 
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(i)(3). 
II. WILLFUL MISREPRESENTATION OF A MATERIAL FACT 
The Director's finding of willful misrepresentation of a material fact appears to relate to the 
Beneficiary's employment abroad. A finding of willful misrepresentation of material fact against a 
petitioner or beneficiary requires the following elements: 
• The petitioner or beneficiary procured, or sought to procure, a benefit under U.S. immigration 
laws; 
• The petitioner or beneficiary made a false representation; 
• The false representation was willfully made; 
• The false representation was material; and 
• The false representation was made to a U.S. government official. 
See 8 USCIS Policy Manual J.2(B), https://www.uscis.gov/policymanual. 
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 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, 53 7 (BIA 1980). 
In the section of the decision addressing willful misrepresentation, the Director stated only that "in 
this case the beneficiary did not properly address the NOID" after providing a comprehensive 
overview of evidence it requested from the Petitioner in the NOID. However, the Director did not 
articulate how the Petitioner's response to the NOID was deficient or how its assertions represented 
willful and material misrepresentations to an authorized official of the United States government. The 
Director noted certain discrepancies in the record and in the Beneficiary's immigration history, but 
did not sufficiently analyze how these assertions and the submitted evidence represented a willful 
misrepresentation. Further, the Director's conclusion that the Petitioner willfully misrepresented a 
material fact while also stating that it was the "beneficiary" who did not properly address the NOID 
leaves substantial ambiguity as to whether the misrepresentation finding was being made against the 
Petitioner, the Beneficiary, or against both parties. 
For these reasons, the Director's decision is withdrawn and the matter will be remanded for further 
consideration, which should include issuance of a new notice of intent to deny if the new decision will 
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include a finding of willful misrepresentation of a material fact. The Director may request any 
additional evidence considered pertinent to the new determination and any other issue. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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