remanded EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 21, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a specialty retail store operator, seeks to permanently employ the Beneficiary as its 
president and managing director 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. 
§ 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 a managerial or executive capacity.
The Director of the Nebraska Service Center revoked the 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's foreign employer continued to do business abroad at the time 
of filing; (3) the Beneficiary was employed abroad in a managerial or executive capacity; and (4) it 
will employ the Beneficiary in a managerial or executive capacity in the United States. The Director 
also entered a separate "determination of fraud/willful misrepresentation by means of a fraudulent 
document" against "the petitioning entity and/or its executors." 
On appeal, the Petitioner submits additional evidence and asserts that the Director's notice of intent to 
revoke (NOIR) did not provide adequate notice of derogatory information obtained from outside the 
record of proceeding that served as the basis for the finding of fraud or willful misrepresentation. The 
Petitioner further asserts that the issue of the Beneficiary's foreign employment was not properly 
addressed in the NOIR and that the petition approval should not have been revoked on that basis. With 
respect to the Beneficiary's U.S. employment, the Petitioner maintains that the Director reached 
"unsupportable conclusions" regarding the proposed U.S. employment that were not based on a 
reading of the record as a whole, and also relied on factors not addressed in the NOIR. 
Upon de novo review, we find that the Director's NOIR and revocation decision did not provide the 
Petitioner with sufficient notice of derogatory information from outside the record, and the Petitioner 
was not afforded a fair opportunity to contest the decision and to allow a meaningful appellate review. 
Further, we agree with the Petitioner that the NOIR was deficient with respect to addressing the issues 
of the Beneficiary's employment in a managerial or executive capacity in the United States and abroad. 
Finally, we find that the Director did not provide the necessary analysis to support the finding of fraud 
or willful misrepresentation of a material fact. Therefore, we will withdraw the Director's decision. 
Matter of V-, Inc. 
Notwithstanding our withdrawal of the Director's decision, we find that the record as presently 
constituted does not establish that the Petitioner and Beneficiary meet all eligibility requirements for 
the benefit sought. Therefore, we will remand the matter for issuance of a new NOIR 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 )( 1 )( 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). 
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." The Director 
must first issue a NOIR in order to allow the Petitioner the opportunity to offer evidence in opposition 
to the grounds alleged for the revocation. See 8 C.F.R. § 205.2(b). 
II. BASIS FOR REMAND 
We agree with the Petitioner that the Director's NOIR was insufficient and that the revocation decision 
was based, in part, on issues that were not addressed in the NOIR. The Director must fully inform the 
Petitioner of all factors that contributed to the revocation decision in order to effectively provide the 
Petitioner with an opportunity to rebut the grounds for revocation. 
Here, prior to issuing the revocation decision, the Director issued a one and one-half page NOIR that 
opened with the following statement: 
A de novo review by USCIS resulted in a finding of fraud levied against the Petitioner 
based on fraudulent documents and willful misrepresentations made in support of this 
filing pertaining to its claimed foreign affiliate and the beneficiary's experience with 
the foreign affiliate. 
The NOIR went on to state that Depa1tment of Homeland Security site visits to "various entities in 
India" resulted in a determination that "altered documents were submitted to support this and other 
immigration filings," that the claimed foreign affiliate "closed sometime between 2008 and 2010," 
and that "the Petitioner and/or preparer(s) of this filing willfully misrepresented the ownership of the 
Petitioner's claimed foreign affiliate." 
2 
Matter of V-, Inc. 
Although the Director referred to "altered documents" (in the plural), the NOIR referenced only one
specific document, a "Cable Operator Business Registration Certificate! l" which was
one of many documents submitted in support of the Petitioner's claim that the foreign sole
proprietorship is owned by� I the Petitioner's majority owner. The Director advised the
Petitioner that it obtained ''t
= 
e authentic registration certificate" from the f°rtin,nt a11th.!lriti''. in India,
which shows that the person linked to the number isl I is I and not
the claimed owner of the foreign entity I I. The Director made a summary finding of
"fraud/willful misrepresentation" in the NOIR without further discussion of the issue, and did not
address the Petitioner's rebuttal of this finding in the revocation decision. 
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 in 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. 
A finding of fraud requires a determination that the alien or petitioner made a false representation of
a material fact with knowledge of its falsity and with the intent to deceive an immigration officer.
Furthermore, the false representation must have been believed and acted upon by the officer. See
Matter ofG-G-, 7 I&N Dec. 161 (BIA 1956). 
Here, the Director's conclusory finding of "fraud/willful misrepresentation" 1 against "the Petitioner
and/or the preparer" appears to be based in part on information acquired during site visits that the
Director did not describe and therefore he did not provide the Petitioner with notice of all derogatory
information that impacted the decision. The Director is obligated to not only provide notice of any
derogatory information that is discovered outside of the record of proceedings, but the Director must
make that derogatory information part of the record. 8 C.F.R. § 103.2(b)(16)(i). 
1 The terms "fraud" and "misrepresentation" are not interchangeable. Unlike a finding of fraud, a finding of 
material misrepresentation does not require an intent to deceive or that the officer believes and acts upon the 
false representation. See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
3 
Matter of V-, Inc. 
Specifically, the Director refers to "altered documents" submitted in support of "other immigration 
filings" without further explanation, and does not state how a determination was made that the foreign 
entity had closed between 2008 and 2010, other than suggesting that the information was obtained 
through site visits to "various entities." The Petitioner noted in response that this "bald allegation" 
was made without any supporting facts or evidence, and it was therefore difficult to respond. We 
agree that the Director did not sufficiently articulate any specific derogatory information that led to 
these conclusions, nor did it adequately address the Petitioner's rebuttal evidence submitted to 
establish that the foreign entity continued its business activities in 2012 and beyond. The Director 
simply rejected this evidence by stating that "utilizing the name of a de facto defunct business does 
not establish that said entity is sufficiently doing business." 
The Director also referred to "fraudulent documents and willful misrepresentations" pertaining to "the 
beneficiary's experience with the foreign affiliate" but did not further discuss the issue of the 
Beneficiary's foreign employment in the NOIR. In the revocation decision, the Director noted that 
the record "lacks sufficient evidence to establish that the petitioner's purported foreign affiliate had 
sufficient staffing levels or was sufficiently engaged in doing business to warrant the beneficiary's 
purported position." However, as the NOIR implied that the Director had obtained derogatory 
information regarding the Beneficiary's foreign employment that was obtained from outside the 
record, we cannot determine whether the Director's decision was based, in pa1t, on derogatory 
information that was unknown to the Petitioner. 
The remainder of the NOIR referenced the Beneficiary's proposed U.S. employment and focused on 
three factors: the total salaries and wages paid in 2012, the year in which the petition was filed; the 
fact that the Petitioner's IRS Forms W-2 for 2012 were redacted and showed low annual earnings for 
the majority of employees; and the fact that the Petitioner's organizational cha1t listed the job titles for 
positions within the organization, but did not identify the employees by name. The Director concluded 
based on these facts that the Petitioner did not establish that the Beneficiary's position meets the 
requirements for executive or managerial capacity. However, the Director's revocation decision did 
not address the Petitioner's rebuttal evidence with respect to the company's employees and staffing 
levels, and it also raised other factors, such as the Beneficiary's job description, that were not 
addressed in the NOIR and to which the Petitioner did not have an opportunity to respond. 2 
The Director also erred by entering a conclusory finding of fraud or willful misrepresentation in the 
NOIR itself, before the Petitioner had an opportunity to rebut the allegations. Finally, the Director 
ultimately neglected to separate and analyze the elements of fraud and willful misrepresentation or to 
discuss those elements within the context of the relevant factors that contributed to his finding. As 
there were insufficient facts and analysis in the NOIR and revocation decision to support the Director's 
decision, that decision must be withdrawn. 
Accordingly, we will remand the matter so that the Director can provide the Petitioner with proper 
notice of derogatory information obtained from outside the record and a full explanation of the reasons 
for revocation based on a complete review of the Petitioner's evidence. In visa petition proceedings, 
2 The revocation decision also includes a finding that the Petitioner "functions as a de facto remote work site located in the 
U.S. of a predominantly foreign based production operation." This conclusion is not supported by any evidence in the 
record and is contrary to the Director's determination that the claimed foreign affiliate is no longer doing business. 
4 
Matter of V-, Inc. 
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 and entry of a new decision consistent with the foregoing analysis. 
Cite as Matter of V-, Inc., ID# 2823453 (AAO May 21, 2019) 
5