dismissed EB-2 NIW Case: Medicine

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-S-
APPEAL OF TEXAS 
SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 22,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a physician, seeks an immigrant visa petition as a member of the professions holding 
an advanced degree as set forth in section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2). In addition, the Petitioner seeks a "national interest" waiver from the 
requirement of a job offer by aU .S. employer. Section 203(b )(2)(B)(ii) of the Act provides that such 
a waiver shall be afforded to a physician who meets several conditions, including that the individual 
will work in an area with a shortage of health care professionals. 
The California Service Center approved the Form I -140, Immigrant Petition for Alien Worker. 
However, the Director of the Texas Service Center subsequently revoked the approval of the 
immigrant petition, finding that the Petitioner did not establish that he had an employer-employee 
relationship with _ as he attested at the time of filing. The 
Director further indicated that the Petitioner "willfully misrepresented his intention of seeking 
employment with when he submitted an employment contract with signed by an 
unauthorized signatory." 
On appeal, the Petitioner states that the question of whether he was an employee of is 
immaterial, he has established his eligibility under the "spirit" of the regulations, and he denies 
willfully misrepresenting material facts. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
Matter of A-A-S-
interests, or welfare of the United States; and whose services in the sciences, arts, 
professions, or business are sought by an employer in the United States. 
(B) Waiver of job offer-
(i) National interest waiver. Subject to clause (ii), the Attorney General 1 may, 
when the Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, atis, 
professions, or business be sought by an employer in the United States. 
(ii) Physicians working in shortage areas or veteran facilities. 
(I) In general. The Attorney General shall grant a national interest waiver 
pursuant to clause (i) on behalf of any alien physician with respect to 
whom a petition for preference classification has been filed under 
subparagraph (A) if-
(aa) the alien physician agrees to work full time as a physician in an 
area or areas designated by the Secretary of Health and Human 
Services as having a shortage of health care professionals or at a 
health care facility under the jurisdiction of the Secretary of 
Veterans Affairs; and 
(bb) a Federal agency or a department of public health in any State has 
previously determined that the alien physician's work in such an 
area or at such facility was in the public interest. 
The implementing regulations at 8 C.F .R. § 204.12 specify that a physician must agree to work 
full time for an aggregate of five years, and set forth the evidentiary requirements to establish 
eligibility for the national interest waiver. Specifically, as relevant here, the provisions at 8 C.F.R. 
§ 204.12( c )(1) provide that a petitioner must submit evidence with the petition relating to his 
intended employment arrangement, either as "an employee" or through his "own practice.'' If the 
physician will be an employee, he is required to submit a full-time employment contract covering the 
required five year period of clinical medical practice, or an employment commitment letter from a 
veterans' facility. The contract or letter must have been issued and dated within six months prior to 
the date the petition is filed. 8 C.F.R. § 204.1(c)(l)(i). Alternatively, ifthe physician will establish 
his own practice, he must provide a sworn statement committing to the full-time practice of clinical 
1 Pursuant to section 1517 of the Homeland Security Act of 2002 ("HSA"), Pub. L. No. I 07-296, 116 Stat. 2135, 2311 
(codified at 6 U .S.C. § 557 (20 12)), any reference to the Attorney General in a provision of the Act describing functions 
that were transferred from the Attorney General or other Department of Justice official to the Department of Homeland 
Security by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See also 6 U.S.C. § 542 note 
(2012); 8 U.S.C. § 1551 note (2012). 
2 
.
Matter of A-A-S-
medicine for the required period, and describing the steps he has taken or intends to actually take to 
establish the practice. 8 C.F.R. § 204.1(c)(l)(ii). 
II. ANALYSIS 
A. Procedural Background 
In September 2007, the Petitioner filed the Form I-140 petition stating that he intended to work full­
time in a clinical medical practice for an aggregate of five years as an employee of He 
provided a copy of a full-time employment contract, dated November 14, 2006, signed by his 
brother, on behalf of In November 2009, the Director approved the 
petition. 
The Petitioner held H-lB status authorizing his employment with when he filed the instant 
petition. 2 In October 2013, U.S. Citizenship and Immigration Services (USCIS) revoked the H-lB 
petition finding that the Petitioner was the sole owner and member of and therefore, the 
company did not establish that it was a U.S. employer having an employer-employee relationship 
with the Petitioner as is required by H-1 B regulations and labor condition application attestations. 
Upon revocation of the H-lB petition, the Director sent a Notice of Intent to Revoke (NOIR) the 
instant petition, stating that USCIS had determined 
that the Petitioner did not have an employer­
employee relationship with as he had indicated. The Director explained that the Petitioner 
stated he would be an employee of in accordance with 8 C.F.R. § 204.12(c)(l)(i), and that 
since USCIS had determined that no such employment relationship exists, the Form I-140 petition 
would be revoked. The Director also found that the Petitioner willfully misrepresented his intention 
of seeking employment with as its employee when he provided an employment contract signed 
by an unauthorized signatory. 
The Petitioner responded to the NOIR, stating that "whether [the Petitioner] is an employee is not 
material to the Form I-140 in this case," and that "the national waiver law does not require that the 
alien be an employee." The Director revoked the approval of the Form 1-140 and the Petitioner 
subsequently filed an appeal. The Director's decision will be upheld and the appeal dismissed. 
B. Proper Issuance of the NOIR 
The first issue we must address is whether the Director adequately advised the Petitioner of the basis 
for revocation of approval of the petition. Section 205 of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1155, provides that "[t]he Attorney General [now Secretary, Department of 
Homeland Security] 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." This means that notice must be 
2 The Petitioner was the Beneficiary of a Form 1-129 Petitioner for Nonimmigrant Worker, Notice of Approval ! 
I filed by 
.
Matter of A-A-S-
provided to the petitioner before a previously approved petition can be revoked. See 8 C.F.R. 
§ 205.2. 
Further, the regulation at 8 C.F.R. § 103.2(b)(l6) requires USCIS to disclose derogatory information 
of which the petitioner is unaware, to afford the petitioner an opportunity to rebut the information 
before the decision is rendered. A notice of intention to revoke the approval of a visa petition is 
properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, 
if unexplained and unrebutted, would warrant a denial of the visa petition based upon the Petitioner's 
failure to meet his burden of proof. Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of 
Estime, 19 I&N Dec. 450 (BIA 1987). 
In the NOIR, the Director advised the Petitioner that because he had not established that he was an 
employee of as described in his initial filing, he "may not submit a full-time contract in 
accordance with 8 C.F.R. § 204.12(c)(l)(i), but is obligated to submit the requisite evidence for 
physicians establishing their own practice." The Director also advised the petitioner that the Form 
I -140 may be revoked due his willfully misrepresentation of material facts. The Director stated that 
the Petitioner "submitted an employment contract with _ signed by an 
unauthorized signatory in order to receive the benefit ofhis approved Form I-140." 
While the Petitioner asserts on appeal that the Director did not have "good cause - in the form of a 
legal or factual basis - upon which to revoke the petition," we find that the Director appropriately 
reopened the approval of the petition by issuing the NOIR by questioning the Petitioner's 
employment relationship with and apprising him of possible willful misrepresentation of 
material fact, thereby giving him notice of the derogatory information specific to the current 
proceeding. As such, we find that the Petitioner was afforded a meaningful opportunity to rebut or 
respond to the evidence described in the NOIR. See Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 
1995). 
C. Eligibility for the Requested Benefit 
As stated above, the regulations require physicians seeking a national interest waiver to choose 
between two intended employment arrangements with different evidentiary requirements. See 
8 C.F .R. § 204.12( c )(I )(i), (ii). These requirements are meant to ensure that petitioners verify their 
commitment to practice medicine full time in an underserved area and document how they will 
accomplish this requirement. 
The Petitioner explained in his initial filing that he "will be working for _ ' as 
an internal medicine physician contracting with three hospital facilities in underserved areas. He 
offered a Form G-325A, Biographic Information; statement of qualifications of alien, in which he 
listed as his employer; and a physician employment agreement. The employment agreement, 
executed on November 14, 2006, dictates that "the term of the employment under this agreement 
shall be for five year beginning on December 15, 2006." 
4 
.
Matter of A-A-S-
For the reasons discussed below, we find that the Petitioner has not proven his eligibility as an 
employee under 8 C.F.R. § 204.12(c)(l)(i). Specifically, he did not provide an employment contract 
that was dated and issued within six months prior to filing the petition and valid for the required five 
year period, or establish that he was an "employee" of at the time of filing. 8 C.F.R. 
§ 204.1 ( c )(1 )(i). 
Regarding the contract evidencing the Petitioner's employment status, although not addressed by the 
Director, we note that the employment agreement between the Petitioner and was signed on 
November 14, 2006, and became effective on December 15, 2006. This is more than six months 
prior to the date the immigrant petition was filed on September 26, 2007. Furthermore, the contract 
states that it is valid for five years after its effective date, or until December 15, 2011. The petition 
was filed on July 27, 2007, and therein the Petitioner attested that he would be practicing in a 
medically underserved area for five years, or until July 27, 2012. Given the contract's deficiencies, 
we find that the Petitioner has not provided the evidence required under 8 C.F.R. § 204.12( c )(I )(i) 
for employees. 
Furthermore, as noted by the Director, the Petitioner has not otherwise demonstrated that he had an 
employer-employee relationship with at the time of filing because he did not established that 
the company would exercise control over his work. While the nonimmigrant visa regulations define 
the term "employer," 3 the regulations do not define the term "employed" or "employee" for purposes 
of the either the nonimmigrant visa or the national interest waiver visa classifications. The Supreme 
Court has determined that where the applicable federal law does not define "employee," the term 
should be construed as "intend[ing] to describe the conventional master-servant relationship as 
understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 
322-323 (1992) ("Darden") (quoting Comty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-
40 (1989) ("C.C.N V")). The Court stated that, in determining whether a hired party is an employee 
under the general common law of agency, it considers the hiring party's "right to control the manner 
and means by which the product is accomplished." Darden, 503 U.S. at 323-324 (quoting C.C.N. V, 
490 U.S. at 751-752); see also Clackamas Gastroenterology Assocs. P. C. v. Wells, 538 U.S. 440, 
445, 
447 & n.5 (2003). 
Therefore, in considering whether or not one was an "employee" for purposes of either nonimmigrant 
or immigrant petitions, USCIS must focus on the common-law touchstone of "control." Clackamas, 
538 U.S. at 450. The factors indicating that a worker is or will be an "employee" of an "employer" are 
clearly delineated in both the Darden and Clackamas decisions. Darden, 503 U.S. at 323-24; 
Clackamas, 538 U.S. at 445; see also Restatement (Second) of Agency§ 220(2) (1958). Such indicia of 
control include when, where, and how a worker performs the job; the continuity of the worker's 
relationship with the employer; the tax treatment of the worker; the provision of employee benefits; and 
whether the work performed by the worker is part of the employer's regular business. See Clackamas, 
538 U.S. at 445; see also EEOC Compl. Man. at§ 2-III(A)(l) (adopting a materially identical test and 
indicating that said test was based on the Darden decision). 
3 8 C.F.R. § 214.2(h)(4)(ii) 
5 
.
Matter of A-A-S-
Lastly, the "mere existence of a document styled 'employment agreement'" shall not lead inexorably to 
the conclusion that the worker is an employee. Clackamas, 538 U.S. at 450. "Rather, ... the answer to 
whether [an individual] is an employee depends on 'all of the incidents of the relationship ... with no 
one factor being decisive." !d. at 451 (quoting Darden, 503 U.S. at 324 ). 
Applying the Darden and Clackamus tests to this matter, the Petitioner has not established that he had 
an employer-employee relationship at the time the petition was filed and during the validity period of 
the petition because he has not documented the manner in which had control over his work. The 
record indicates that is a limited liability company that is owned, controlled, and operated by the 
Petitioner. The Petitioner owns 1 00 percent member interest and he is solely in control of the company. 
Thus, does not exercise control over the petitioner, rather, the Petitioner exercises control over the 
company. Additionally, the employment agreement carries little weight for purposes of demonstrating 
an employer-employee relationship because in the instant case, the employer and employee are one in 
the same. Accordingly, the Petitioner has not established that he was an "employee" of as he 
stated in his initial filing.4 
On appeal, the Petitioner asserts that whether he had an employer-employee relationship with is 
"immaterial." He argues that he "could have just as easily presented his own sworn statement 
confirming self-employment, and that the regulation "provides alternative avenues by which [the 
Petitioner] is able to comply, including the option of providing the services at issue in the context of 
self-employment." While the Petitioner is correct that the regulations allow filing as a self­
employed physician, the regulation at 8 C.F.R. § 204.12(c)(l)(ii) requires self-employed physicians 
to provide a sworn statement committing to the full-time practice of clinical medicine for the 
required period, and describe the steps he has taken or intends to actually take to establish the 
practice. As the Petitioner has not submitted this required evidence, the record does not support his 
contention that he established eligibility as a self-employed physician. 
The Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F .R. § 1 03 .2(b)(l ). 
Here, the Petitioner has not established that he met the initial filing requirements for the immigration 
benefit, either as an employee or as a self-employed worker. As such, the Director's revocation will 
be affirmed on this ground. 5 
D. Willful Misrepresentation of Material Fact 
We will next address the Director's finding that the Petitioner engaged in willful misrepresentation of a 
material fact. The Act states that any foreign national who, by fraud or willfully misrepresenting a 
4 We acknowledge that there may be some scenarios in which a solely owned limited liability company may establish an 
employer-employee relationship. However, the Petitioner has not provided such evidence in this proceeding. 
5 
The Petitioner also claims on appeal that the Director's revocation was prejudicial and unfair, violating his due process 
rights. However, as discussed above, we find that the Petitioner was properly notified of the basis of the revocation, and 
that the decision to revoke approval of the petition was proper. 
.
Matter of A-A-S-
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. Section 212(a)(6)(C)(i) ofthe Act, 8 U.S.C. § 1182(a)(6)(C)(i). The Petitioner bears 
the burden of proving he did not willfully mispresent the material facts in revocation proceedings. 
Matter of Cheung , 12 I&N Dec. 715 (BIA 1968). 
As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that 
the individual willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. Kai Hing Hui, 15 I&N Dec. at 289-90. 
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 ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
Thus, 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 revocation, the Director found that the Petitioner willfully misrepresented his intention of seeking 
employment with as its employee by providing an employment contract that was signed by an 
unauthorized signatory. The Director noted that the company ' s articles of organization, filed with 
the Secretary of State of Indiana, provide that the company will be managed by its sole member , the 
Petitioner and no amendments to the company ' s articles have been filed. The Director concluded 
that was not authorized to sign the employment agreement in November 2006 
acting as the representing agent of because he is not designated as a managing member of the 
company. 
On appeal, the Petitioner maintains that was designated as an authorized 
signatory despite the fact that his name does not appear on the company 's articles of organization. 
He also asserts that "there exists no law - and the present Notice of Revocation provides no 
supporting citation - requiring to have its articles or organization to be 
amended so as to allow Mr. to be an authorized signor on behalf of the company. " He 
does not, however , provide documentation of Mr. designation by or evidence to 
demonstrate the legal validity of such designation. 
The burden of proof remains with the Petitioner to show, by a preponderance of the evidence , that 
the Director 's finding is not appropriate and that a material misrepresentation was not committed . 
See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988); Matter of Cheung, 12 I&N Dec. 715 (BIA 
1968). Here, the Petitioner knowingly presented an employment contract as evidence that he would 
.., 
.
Matter of A-A-S-
be "an employee" of 
to the requirements 
§ 204.12(c)(l)(i). 
This is material to the Petitioner's eligibility because it directly relates 
of the regulatory provision under which he sought eligibility, 8 C.F.R. 
While the Petitioner maintains that he authorized Mr. to sign on behalf of the company, he 
has not provided sufficient documentation to support this claim. Mr. is listed as a 
"Director" on an undated addendum to articles of incorporation; however, this alone does 
not establish that he was an authorized signatory because the articles of incorporation specifically 
state that "any member may bind the company in all matters in the ordinary course of business" 
(emphasis added). They do not speak to whether a "director" may similarly bind the company. 
Furthermore, while the Petitioner's assertion that an authorized signatory does not necessarily have 
to be listed on the company's articles of organization is valid, it does not establish that, in this case, 
Mr. was, in fact, authorized to sign on behalf of the company, and he has not offered any 
other evidence to support this contention. Accordingly, the Petitioner has not met his evidentiary 
burden of proving that he did not willfully misrepresent material facts and the Director's decision 
will be affirmed. 6 
III. CONCLUSION 
For the reasons discussed above, we find the Petitioner has not established eligibility for a national 
interest waiver. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-A-S-, ID# 462626 (AAO June 22, 2017) 
6 Willful misrepresentation of a material fact in these proceedings may render a beneficiary inadmissible to the United 
States. "Any [foreign national] 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." Section 212(a)(6)(C) of the Act. In the context of this visa petition, our 
determination is a "finding of fact" and not an admissibility determination. The immigrant visa petition is not the 
appropriate forum for finding a foreign national inadmissible. See Matter of 0, 8 I&N Dec. 295 (BIA 1959). However, 
we will generally enter a written decision with a statement of findings and conclusions on all material issues of law or 
fact, including findings of material misrepresentation. See 8 C.F.R. § I 03.3(a)(2)(x). After we enter the finding of fact 
in this decision, the foreign national may be found inadmissible at a later date in separate proceedings. 
Q