sustained EB-1C Case: Dairy Industry

(b)(6)
DATE: 
JUN 2 8 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
r;on Rosenberg 
feting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will sustain the appeal and 
withdraw the director's decision. 
The petitioner is a United States corporation that is engaged in the dairy industry. According to the petition, 
the company employs 242 persons and produces a gross annual income of approximately $148,000,000. The 
petitioner sought to transfer the beneficiary from a related company in Mexico and employ him as its Senior 
Engineer Specialist. Accordingly, the petitioner filed a Form I-140, Immigrant Petition for Alien Worker, 
seeking to classify the beneficiary as a multinational executive or manager pursuant to section 203(b )(I )(C) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C). 
After issuing a notice of derogatory information, the director ultimately denied the petition with a "finding of 
fraud." The petitioner filed a timely appeal seeking to reverse the finding of fraud. 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.-- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described in this 
subparagraph if the alien, in the 3 years preceding the time of the alien's application for 
classification and admission into the United States under this subparagraph, has been 
employed for at least I year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. See 8 C.P.R. 
§ 204.5(j)(2) (defining the terms "affiliate" and "subsidiary"). 
Section 212(a)(6)(C) of the Act, 8 U.S.C. § 1182(a)(6)(C), 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. 
(b)(6)
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II. Issues on Appeal 
This matter has a complicated procedural history , involving a complex multinational business structure and 
multiple mergers. While the record fully represents the history, the AAO will summarize the essential facts 
for purposes ofthis decision . 
According to the company's representations, the pettttoner is a wholly-owned subsidiary of 
a major producer of dairy products in Mexico. 
maintains over 20 dairy plants in Mexico and the United States and employs more than 27,000 
persons. Through the complex organization of the petitioner has been or is currently associated 
with the following entities: 
-- -~ --- -- :; ------ - - - - - ;~ -·----"'---· 
On May 9, 2011, to create a single corporate identity for the company , the petitioning organization adopted 
the name after acquiring the rights to that brand. 
On August 24, 2009 , filed a Form I-140 visa petition ..J on behalf of the 
beneficiarv. USC!S denied this oetition on April 16,2010. On August 25, 2010 , the current petitioner, 
filed the present Form I-140 visa petition ) on behalf of 
the beneficiary. On August 11, 2011, the director issued a Notice of Intent to Deny (NOID) to inform the 
petitioner of derogatory information and to provide an opportunity to rebut the information. In the NOID, the 
director detailed the petitioner 's corporate structure, name changes, and history , referring to websites as the 
source for much of the information . The petitioner responded on September 12, 20 II, providing a detailed 
and comprehensive rebuttal. On March 13, 2012 , after six months with no decision forthcoming , the 
petitioner withdrew the visa petition stating that the beneficiary was no longer employed by the company. 
On August 7, 2012 , the director denied the petition , concluding that the petitioner failed to provide 
sufficient 
reliable evidence to: (1) establish that it has a qualifying relationship with the beneficiary's employer abroad; 
(2) establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; (3) 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity; (4) establish that the petitioner and the foreign entity had been and continue to do business; and (5) 
establish that it had the ability to pay the beneficiary 's proffered wage at the time the petition was filed. The 
director denied the visa petition based on these five merits determinations. 
Additionally, the director determined that the petitioner failed to submit independent and objective evidence 
to overcome the finding that the petitioner submitted "falsified evidence" and therefore issued the denial with 
a "finding of fraud." 
On September 7, 2012, the petitioner, through counsel , filed an appeal. Counsel did not address any of the 
five adverse findings regarding the petitioner's eligibility and, in fact, expressly stated that it was not the 
petitioner's intention to seek approval of the original Form 1-140 in light of the beneficiary's departure from 
his employment with the petitioner. Instead , the petitioner seeks to challenge the director 's finding of fraud. 
(b)(6)
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III. Analysis 
A. Withdrawal 
As an initial matter, in view of the petitioner's request that the petition be withdrawn, the director issued the 
August 7, 2012 decision on the merits in error. The AAO will withdraw the director's decision relating to the 
five determinations on the merits. The record will reflect that the petition was withdrawn by the petitioner. 
Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). 
A petitioner may withdraw a petition at any time up to the point that a decision is rendered by USCIS or, if 
the petition is approved, until the beneficiary is admitted, adjusts status, or changes status based on the 
approved petition. 8 C.F.R. § 103.2(b)(6). A withdrawal may not be retracted. !d. Once a petition is 
withdrawn, USCIS may not refuse the withdrawal and may not deny the petition on the merits, but the facts 
and circumstances surrounding the withdrawn petition shall be considered material to any new petition. See 
Cintron, 16l&N at9; 8 C.F.R. § 103.2(b)(l5). 
However, only a timely and voluntary retraction of a misrepresentation can serve as a defense to 
inadmissibility; the simple withdrawal of a visa petition will not absolve a petitioner or beneficiary from the 
attempted misrepresentation. A withdrawal will not preclude USCIS from entering a finding on the record, 
separate and apart from a decision on the merits, based on an attempt to procure a visa, other documentation, 
admission, any other immigration benefit by fraud or the willful misrepresentation of a material fact. 
B. Timely Retraction 
Accordingly, the second issue in this matter is whether the withdrawal constitutes a timely retraction of the 
alleged "falsified evidence." A timely retraction of a misrepresentation can serve as a defense to 
inadmissibility under section 212(a)(6)(C)(i) of the Act. See Matter of R-R-, 3 I&N Dec. 823 (BIA 1949); 
Matter of M-, 9 I&N Dec. 118 (BIA 1960). For the retraction to be effective, it must be done "voluntarily and 
without prior exposure of [the] false testimony." Matter of R-R-, 3 I&N Dec. at 827; see also Matter of 
Namio, 14 I&N Dec. 412, 414 (BIA 1973) (holding that recantation of false testimony one year after the 
event, and only after it became apparent that the disclosure of the falsity of the statements was imminent, was 
not voluntary or timely). 
Here, the director issued the NOlO prior to the withdrawal but the petitioner denied any wrongdoing and 
submitted a comprehensive rebuttal to the notice of derogatory evidence. Assuming arguendo that the 
petitioner submitted the purported "falsified evidence," there would be no timely and voluntary correction of 
misrepresentation as the NOlO placed the petitioner on notice that the director was prepared to expose the 
false testimony. See Matter of M-, 9 I&N Dec. at 119. The petitioner's request to withdraw the petition, after 
the director confronted the petitioner with the purported misrepresentation, did not have the effect of a timely 
retraction. 
(b)(6)
Page 5 
C. Material Misrepresentation 
Finally, turning to the vital issue in this appeal, the AAO concludes that the director did not establish the 
necessary elements to find a material misrepresentation , or a "finding of fraud" as the director inaccurately 
phrased the matter.
1 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts of the case . A 
misrepresentation can be made to a government official in an oral interview, on the face of a written 
application or petition, or by submitting evidence containing false information. See INS Genco Op. No. 91-
39, 1991 WL 1185150 (April 30, 1991 ). The law provides for a wide range of potential consequences for 
material misrepresentation, including the denial of the visa petition, a finding of fact that may render an 
individual alien inadmissible to the United States, or criminal prosecution. See 18 U.S.C. §§ I 001, 1546; see 
also, US. v. O'Connor, 158 F.Supp.2d 697 (E.D. Va. 2001). 
An immigration officer will deny a visa petition if the petitioner submits evidence which contains false 
information. In general , a few errors or minor discrepancies are not reason to question the credibility of an 
alien or an employer seeking immigration benefits. See Spencer Enterprises Inc. v. US., 345 F.3d 683, 694 
(9th Cir., 2003). However, if a petition includes serious errors and discrepancies, and the petitioner fails to 
resolve those errors and discrepancies after an officer provides an opportunity to rebut or explain, then the 
inconsistencies will lead USCIS to conclude that the facts stated in the petition are not true. See Matter of Ho, 
19 I&N Dec. 582, 591 (BIA 1988). 
Beyond the adjudication of the visa petitiOn, a misrepresentation may also lead USCIS to enter an 
administrative finding that a petitioner or individual sought to procure a visa or other documentation by 
willful misrepresentation of a material fact. See sec. 212(a)(6)(C) ofthe Act. 
As outlined by the Board of Immigration Appeals, a material misrepresentation requires someone to 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 knowingly and intentionally, as distinguished from accidentally , inadvertently, or in an 
honest belief that the facts are otherwise . See 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 ofNg , 17 I&N Dec. 536, 537 (BIA 1980). 
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). A finding of fraud requires a 
determination that the alien 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). 
(b)(6)
Page 6 
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 l&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 director's decision is defective at the most basic level- the director did not identify 
any specific assertion or manifestation that might constitute a material misrepresentation. 
In the original NOlO, the director independently researched and recited in great detail the merger history, 
name changes, and the complex corporate structure of the petitioning organization. In response to the NOlO, 
as noted by the director in the ultimate decision, the petitioner "confirm[ed] the different name changes and 
filing dates mentioned in the NOlO .... although the different filings and name changes may have caused 
some confusion, [the petitioner stated] that its business relationship with has been 
maintained."' The petitioner submitted extensive 
evidence to rebut the director's conclusions. 
The director rejected the rebuttal, however, citing to the fact that the ~ . website does not reflect any 
association with the U.S. petitioner or corroborate any of the claimed actiVIties in the United States. The 
director also referenced research from an outside business information resource that indicated that 
had not engaged in business activities outside of Mexico. After careful review, the AAO cannot locate copies 
of the website or the report in the record of proceeding. As such, the director did not document the 
conflicting information. 
In conclusion, the director has recited a string of complex and possibly conflicting facts, but failed to identify 
any specific assertions that might rise to the level of a material misrepresentation. Vague references to 
"derogatory information" are not sufficient. At best, the director's conclusions are based on inferences or 
conclusions that are not supported by the record. Observations that are conclusory, speculative, equivocal, or 
irrelevant will not provide a proper basis for a finding of material misrepresentation. Cf Matter of Arias, 19 
I&N Dec. 568 (BIA 1988). 
In response to the NOID and on appeal, the petitioner has submitted sufficient evidence to overcome the 
director's conclusions. Accordingly, the director's "finding of fraud" or misrepresentation will be 
withdrawn. 2 
Both the director's decision and the petitioner's subsequent appeal make reference to a Form 1-90, 
Application to Replace Permanent Resident Card, which the beneficiary filed independently. In the final 
decision, the director did not provide the receipt number for this application so that it might be specifically 
identified. Regardless, as a separate record of proceeding, the decision on that application is not before the 
AAO for review and furthermore does not fall within the AAO's appellate jurisdiction. 
(b)(6)
Page 7 
IV. Conclusion 
ln visa petition proceedings , the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. The petitioner has sustainedthat burden . 
ORDER: The appeal is sustained; the petition is withdrawn. 
FURTHER ORDER: The director 's finding of fraud or misrepresentation is withdrawn .