remanded EB-1C Case: Retail

U.S. Citizenship 
and Immigration 
Services 
In Re : 12769278 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 3, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a retailer of cigars , pipes, and tobacco products, seeks to permanently employ the 
Beneficiary as its "President/CEO" under the fust preference immigrant classification for 
multinational executives or managers. See Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § l 153(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 concluding that the Petitioner and the 
Beneficiary made willful misrepresentations regarding the Beneficiary's foreign employment, which 
is material to the Beneficiary's eligibility for the benefit sought herein. The matter is now before us 
on appeal. 
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 remand the matter for further 
consideration . 
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 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, 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. BASIS FOR REMAND 
After reviewing the record and conducting a search of the Beneficiary's immigration history, the 
Director issued a notice of intent to deny (NOID) informing the Petitioner of inconsistent evidence 
regarding the Beneficiary's employment history and the Director's intent to enter a finding of willful 
misrepresentation of a material fact against the Beneficiary if the noted discrepancies were not 
adequately resolved. Although the Director discussed Part 8 of the petition, pointing out that by 
signing the petition the Petitioner certified under penalty that the evidence submitted in support of the 
petition is true and accurate, the Director did not state that he intended to include the Petitioner as a 
subject of the finding of willful misrepresentation of a material fact and only indicated his intent to 
issue that finding against the Beneficiary. Nevertheless, the Director denied the petition and entered 
a finding of willful misrepresentation of a material fact not only against the Beneficiary, but against 
the Petitioner as well. 
The regulations state that when an adverse decision is based on derogatory information of which a 
petitioner was previously unaware, the petitioner must be afforded an opportunity to provide evidence 
in rebuttal of the derogatory information. See 8 C.F.R. § 103.2(b )(l 6)(i). In this matter, the NOID 
did not indicate that a finding of willful misrepresentation of a material fact might be entered against 
the Petitioner, but rather limited the discussion to the Beneficiary as the only intended subject of the 
finding, should the noted discrepancies remain unresolved. Nevertheless, in the denial, the Director 
incorrectly proceeded with a finding of willful misrepresentation of a material fact against the 
Petitioner on the basis of evidence that was not in the record without giving the Petitioner proper notice 
and affording it an opportunity to provided evidence in opposition to the intended finding. As a result 
of this procedural error, we will remand this matter for further action consistent with the foregoing. 
III. MATERIAL MISREPRESENTATION 
Notwithstanding the Director's error, we will affirm the Director's finding of willful misrepresentation 
of a material fact against the Beneficiary for the reasons discussed below. 
A. Factual Background 
In its initial supporting statement, the Petitioner named~--------~in Uganda as its foreign 
parent entity and stated that the Beneficiary has a "history and seasoned relationship" with that entity 
after having worked there from 2013 to 2015 as its CEO. The Petitioner provided a description °(job I 
duties the Beneficiary is claimed to have performed during his alleged employment with 
I L stating that the Beneficiary was employed in a managerial capacity. The Petitioner also 
raised a competing claim, stating that the Beneficiary assumed "an executive position." 1 
1 A petitioner claiming that the beneficiary's position abroad consisted of a mixture of managerial and executive duties 
will not meet its burden of proof unless it has demonstrated that the beneficiary primarily engaged in either managerial or 
executive capacity duties. See section 101 (a)(44)(A)-(B) of the Act. While in some instances there may be duties that 
could qualify as both managerial and executive in nature, it is the petitioner's burden to establish that the beneficiary's 
duties in the position in question meet each set of criteria set forth in the statutory definition for either managerial or 
executive capacity. A petition may not be approved if the evidence of record does not establish that the beneficimy was 
primarily employed in either a managerial or executive capacity. 
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The Director later issued a NOID, discussing information contained in the record regarding the 
Beneficiary's employment abroad, including information provided in the Form G-325A, Biographic 
Information, and noted that both the Petitioner and the Beneficiary claimed that the Beneficiary was 
employed byl lin Uganda from May 2013 to May 2015 and that his position was that of 
"CEO." The Director also summarized the employment history that the Beneficiary provided in two 
nonimmigrant visa (NIV) applications that were filed in June 2014 and December 201 r, respectively, 
noting that in the June 2014 NIV application the Beneficiary listed I I in India as his 
"current" employer and , , lin Uganda as his fo,11er emn)over from Tamlary 2012 to January 
2014, while the December 2015 NIV ap~lication listed I._ _____ _,,~--------'· in Tanzania as the 
Beneficiary's "current" employer andl : , I as his former employer from February 2013 
through April 2014. The Director determined that the inconsistent evidence - both in and outside the 
record - regarding the Beneficiary's history of foreign employment indicates that the Beneficiary 
made false representations on an issue that is material to his eligibility. Accordingly, the Director 
stated that the discrepancies, if unresolved, may lead to a finding of willful misrepresentation of a 
material fact against the Beneficiary. 
In response, the Petitioner reiterated the claim that the Beneficiary was employed atl 
from 2013 to 2015 and provided supporting documents, which included the following~: _____ _. 
1. The foreign entity's tax forms titled "PA YE Return Form" for July 2013, September 2014, 
and March 2015; 
2. Three documents titled "Schedule 1 - Details of Salary paid and PA YE deducted from 
Employees" for July 2013:Se~tember 2014, and March 2015, each listing the Beneficiary as 
an employee oti ~ <..r I 
3. Monthly payment vouchers containing the Beneficiary's signature on the "Recipient 
Signature" line, indicating that the Beneficiary received wages froml I from 
March through December 2013; 
4. Memorandum and Articles of Association, showing that .__ ________ __,was 
established on Aril 22, 2013; 
5. A letter from l's managing director reiterating the Petitioner's employment 
claim and a letter from the sales manager, who claimed he was the Beneficiary's subordinate 
atl I in "2013/2014"; 
6. A May 2019 letter from the store manager o~ !stating that he had been a 
I I emploxee for eight hears and that "[f]or the period of 2013/2014" the 
Beneficiary worked fo~~-~--~_in a consultin~ capacity; and 
7. An undated letter from the Beneficiary's father on t letterhead, claiming 
that the Beneficiary was in India and "was helping" him with his business from February to 
June 2014. 
The Director denied the petition, finding that the additional evidence did not resolve, but rather added 
to the existing inconsistencies. The Director concluded that the Beneficiary's NIV applications were 
inconsistent with the additional evidence and the foreign employment claims made by the Petitioner 
and the Beneficiary regarding the Beneficiary's alleged employment withl I 
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B. Analysis 
The facts and evidence presented in the instant matter warrant a finding of willful misrepresentation 
of a material fact against the Beneficiary. 
Section 212(a)(6)(C) of the Act provides: 
Misrepresentation. - (i) In general. - Any alien 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 this Act is inadmissible. 
As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that 
the alien willfully make 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 m 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 of M-, 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. 
In the present matter, the Beneficiary signed and submitted a Form G-325A, Biographic Information, 
in which he stated that he was employed as "CEO" ofl O J in Uganda from May 2013 to 
May 2015. The Beneficiary did not list any foreign employment after May 2015, even though he 
indicated that he continued to reside at an address in Uganda until December 2016. As indicated 
above, this employment information is inconsistent with the Beneficiary's 2014 and 2015 NIV 
applications, which do not include! I as the Beneficiary's "current" or former employer 
and are incousi:te:t with or another regarding the position the Beneficiary held and the dates he was 
employed aJL..~------' These inconsistencies aside, it is critical to note that both NIV applications 
indicate that the Beneficiary was employed atl I in 2013 and 2014, years during which 
the Beneficiary claims he was employed byl I the Petitioner's parent entity. Likewise, 
the employment verification letter from the Beneficiary's father states that he was working for a 
family-owned business in India during a time when the Beneficiary himself claims he was working 
forl O J in Uganda. 
Furthermore, the monthly payment vouchers, which were purportedly issued byl I and 
contain the Beneficiary's signature as the recipient of wages from March through December 2013, are 
inconsistent with the information the Beneficiary provided in Form G-325A, which indicates that the 
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Beneficiary's claimed period of employment commenced in May 2013. It is unclear whyO 
I I would have paid wages to the Beneficiary in March and April 2013, if his employment did 
not commence until May 2013. Moreover,! Is Memorandum and Articles of Association 
show that this entity was not established until April 22, 2013. This evidence further undermines the 
validity of the pay vouchers, which contain the Beneficiary's signature and indicate that the 
Beneficiary received wages from a company that did not yet exist. 
Although the Petitioner provided additional wage evidence, itemized above as NOID response exhibits 
1 and 2, the notable discrepancies described herein cast doubt on the validity of that evidence as well 
as the letters of employment, which were submitted in an effort to resolve discrepancies pertaining to 
the Beneficiary's employment withl I during the statutorily relevant three-year time 
period that preceded the filing of this petition. 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). Unresolved material inconsistencies, such as those described herein, lead us to 
reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Id. 
As stated earlier, in order to establish eligibility for the benefit sought herein, the record must show 
that the Beneficiary had at least one continuous year of full-time employment abroad in a managerial 
capacity and that the employment was with a qualifying organization and took place within the three 
years preceding the filing of the petition. See section 203(b)(l)(C) of the Act, 8 U.S.C. 
§ 1153(b)(l)(C). 
In light of the contradictory information presented in the Beneficiary's NIV applications and the lack 
of credible, objective evidence regarding the Beneficiary's foreign work experience as detailed above, 
we conclude that the statements made by the Beneficiary on his Form G-325A under penalty of perjury 
were not correct and constitute a false representation. 
Further, by signing the fraudulent payment vouchers as well as the Form G-325A attesting to the 
veracity of the claims therein regarding his employment history, the Beneficiary directly participated 
in the preparation and submission of documents that convey the false assertion that he had the requisite 
qualifying employment abroad. Given the unresolved contradictory evidence in the record regarding 
the Beneficiary's experience, we conclude that the Beneficiary's misrepresentation was willful. 
Finally, the Beneficiary's misrepresentation is material to his eligibility. Here, the Beneficiary's 
employment abroad with the foreign entity, in a capacity he claims was managerial in nature, is 
material to whether he meets the minimum requirements of the offered position. The 
misrepresentation regarding the Beneficiary's experience on the Form G-325A and in the signed 
payment vouchers containing the Beneficiary's signature cut off a potential line of inquiry regarding 
his claimed experience. See Matter of Ng, 17 I&N Dec. at 537. 
Accordingly, we agree with the Director's determination that the Beneficiary made a willful 
misrepresentation of a material fact on the Form G-325A and in documents submitted in support of 
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the Form 1-140 petition. This finding of willful material misrepresentation shall be considered in any 
future proceeding where the Beneficiary's admissibility is an issue. 
IV. CONCLUSION 
Despite affirming the Director's finding of willful misrepresentation of material fact against the 
Beneficiary, we will remand this matter for farther consideration as to whether a finding against the 
Petitioner is warranted, and if so, for issuance of a NOID that will properly inform the Petitioner of 
the Director's intent to make that finding. 
ORDER: The Director's decision 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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