dismissed L-1A Case: Art Sales

PUBLIC COPY 
Mentifiimg data deleted to 
prevent clearly unw anant& 
invasion of pmonal phvacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave, N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 02 186 51 889 Office: CALIFORNIA SERVICE CENTER Date: MAY 2 9 2008 
PETITION: 
 Petition for a Nonirnmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther inquiry must be made to that office. 
Ro ert P. Wiemann, 1 ctor 
w 
Administrative ~ppeal; Ofice 
ih 
WAC 02 186 51889 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal 
and enter a separate finding of material misrepresentation. 
The petitioner is a new U.S. office engaged in the sale of Chinese porcelain art. It seeks to employ the 
beneficiary as its president-chief executive officer, and filed a petition to classify the beneficiary as a 
nonirnmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Act, 8 U.S.C. 
9 1 10 1 (a)(l5)(L). 
The director denied the petition based on an April 16, 2002 U.S. Consulate memorandum, which outlined 
several "fraud indicators" from a February 2002 interview with the beneficiary and a subsequent site visit to 
the foreign company.' Specifically, the Consulate General stated that the beneficiary had limited English 
skills and was unable to explain operational, management, or marketing plans for the new U.S. operation. 
The Consulate General also noted that following a visit to the location of the foreign company, the premises 
were occupied by a separate, but apparently related company, and did not display or identify the name of the 
beneficiary's foreign employer. In the decision, the director denied the petition, concluding that the petitioner 
violated section 212(a)(6)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 11 82(a)(6)(C). 
The petitioner subsequently filed an appeal.2 The director declined to treat the appeal as a motion and 
forwarded it to the AAO for review. On appeal, counsel claims that the director erred in finding that the 
petitioner committed fraud or willful misrepresentation in violation of section 212(a)(6)(C) of the Act. 
Counsel submits a brief and additional evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. fj 1 10 1 (a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in a 
qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
Ln addition, the beneficiary must seek to enter the United States temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized 
knowledge capacity. 
1 
 The petitioner filed a previous nonirnmigrant visa petition (WAC0208950887), which was approved by the 
California Service Center on March 15, 2002, and subsequently revoked on October 14, 2004. Prior to the 
visa issuance, the beneficiary attended an interview at the U.S. Consulate in Guangzhou, China, which 
initiated the Consulate's investigation. Counsel for the petitioner stated in a May 9, 2002 letter that the 
present petition was filed in order to circumvent the delay of re-adjudicating the revoked petition. 
* Only the petitioner ma a eal the denial of an immigrant visa petition. 8 C.F.R. 5 103.3(a)(l)(iii)(B). The 
appeal was filed by Y, acting as the president and owner of the petitioning corporation. 
Because 1 is also the beneficiary of the revoked immigrant visa petition, the AAO will refer to him 
as the beneficiary throughout the decision. 
WAC 02 186 51889 
Page 3 
The regulation at 8 C.F.R. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the alien are 
qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment abroad with a 
qualifying organization within the three years preceding the filing of the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior education, 
training, and employment qualifies hidher to perform the intended services in the United States; 
however, the work in the United States need not be the same work which the alien performed abroad. 
Moreover, pursuant to the regulation at 8 C.F.R. fj 214.2(1)(3)(~), if the petition indicates that the beneficiary 
is coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the proposed 
employment involved executive or managerial authority over the new operation; 
(C) 
 The intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) or (C) of this 
section, supported by information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its organizational 
structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign entity 
to remunerate the beneficiary and to commence doing business in the United States; and 
(3) The organizational structure of the foreign entity. 
WAC 02 186 51889 
Page 4 
Section 21 2(a)(6) of the Act states that an alien who is an illegal entrant and immigration violator is ineligible 
to receive a visa and may not be admitted into the United States. Subparagraph (C) of section 212(a)(6), 
which deals specifically with misrepresentation, further states: 
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. 
The AAO will first consider whether the "fraud indicators" noted by the consulate in its investigative report, 
which constitute the director's basis for denial, are material to the grounds for eligibility for a nonirnrnigrant 
intracompany transferee classification, as outlined in the regulation at 8 C.F.R. 3 214.2(1)(3). 
In an August 8, 2002 Notice of Intent to Deny, the director outlined the memorandum from the chief of the 
U.S. Consulate's Nonimmigrant Visa Unit in Guangzhou, People's Republic of China, in which he noted the 
following "fraud indicators": 
The applicant was unable to answer questions relating to the cost of operations in the 
U.S., or the competitiveness of the company; 
The beneficiary has little to no English skills and explained that Americans would be 
hired to fulfill the company's work requirements; 
As President of the company, the beneficiary could not elaborate on how he would 
manage the operation in the U.S. beyond hiring a translator and Chinese-speaking 
employees; 
While insisting that a market study had been done, the subject was unable to provide any 
details regarding the U.S. market demand for his company's products; 
When asked for a business card from the parent company in China, the beneficiary gave 
the officer an apparently outdated card with incorrect contact information. 
The memorandum also contained the following account of a March 2002 site visit conducted by a consular 
officer at the address of the foreign company: 
The parent company's address is the same as that of another company that is also supposedly 
owned in whole or in part by the beneficiary. The office itself only displays the name of the 
other company and has no identifiers as being the headquarters of the parent company listed 
in the petition. Furthermore, the office itself contained nothing that would demonstrate that 
the alleged parent company (Shenzhen Saichen Investment Company) is actually operated out 
of the premises. There were no documents (such as brochures or informational material) or 
letterhead that listed the alleged parent company. 
WAC02 18651889 
Page 5 
Additionally, the consular officer noted that a reverse directory search of the petitioner's telephone number 
indicated that the number belonged to two companies that did not appear to have any business relationship 
with the petitioning organization. 
Relying on the above-referenced memorandum, the director issued a notice of intent to deny. The director 
found that the petitioner violated section 212(a)(6)(C) of the Act and determined that the beneficiary did not 
qualify for classification as a nonirnrnigrant intracompany transferee. The director provided the petitioner 
with thirty days within which to reply to the director's findings. 
In a response to the director's notice of intent to deny, dated August 22, 2002, counsel claimed that the 
petitioner did not violate section 212(a)(6)(C) of the Act. Counsel denied the findings in the memorandum, 
and provided the following explanations in response to the outlined "fraud indicators": (1) the beneficiary 
submitted to the consular officer a budget and business plan for the U.S. entity that he drafted and finalized; 
(2) the beneficiary acknowledged that while his English was limited, he will be able to perform his specific 
job duties through a staff of both bilingual and English-speaking workers; (3) the beneficiary's limited 
English skills prevented him from fully explaining his plan for managing the U.S. company, but "his creation 
of the U.S. company's business plan and over [twenty] years of experience in business management iend 
support consistent with his ability to manage operations as indicated in the petition"; (4) although unable to 
thoroughly articulate the marketing plan, the beneficiary conducted research on the U.S. market, which is 
outlined in the business plan; (5) the beneficiary presented the consular officer with a business card that noted 
the foreign company's former address, as it is company policy to use old business cards before purchasing 
new cards; and (6) previously submitted phone bills confirm the location of the petitioning organization in the 
United States. 
With regard to the location of the beneficiary's foreign employer, counsel stated that in February 2001, the 
foreign company moved its office to the News Building, office numbers 2507 and 2508, located in Shenzhen, 
China. Counsel explained that following a joint venture in March 2001 between the beneficiary's foreign 
employer and Central Electro-Mechanical Investment Company, Ltd., the two offices were converted into 
one, from which both companies operated. Counsel further explained that for publicity reasons, the name of 
Central Electro-Mechanical Investment Company was placed on the door of unit 2507, which is more 
noticeable to the public than the entrance to unit 2508, and that the foreign employer's sign was placed 
outside the entrance of unit 2508. Counsel submitted a copy of the building's sketch map and office listing, 
which he claimed verified that the two companies occupied these offices. Counsel stated that the previously 
submitted office lease and phone bills further substantiate the location of the beneficiary's foreign employer. 
Included with the petitioner's response was the following additional documentation: (1) a translated statement 
from the beneficiary, in which he provided an explanation to the fraud indicators; (2) a sketch map and 
company listing of the foreign company's office building; (3) copies of a reverse telephone listing search for 
the petitioning organization; (4) the registration certificate for Central Electro-Mechanical Investment 
Company, which identifies its office location as room 2507 and 2508, News Building, and indicates that the 
WAC 02 186 51889 
Page 6 
foreign company is a 35% shareholder in the organization; and (5) copies of telephone bills from the U.S. 
company. 
In a decision dated September 6, 2002, the director concluded that the letter and documents submitted by 
counsel in response to the notice of intent to deny were insufficient to overcome the above-listed fraud 
indicators. The director likewise determined that the petitioner violated section 212(a)(6)(C) of the Act, and 
consequently denied the petition. 
In an appeal dated October 7, 2002, counsel asserts that the petitioner did not violate section 212(a)(6)(C) of 
the Act. Counsel claims that the director incorrectly concluded that the beneficiary's responses during his 
interview at the U.S. consulate were sufficient to support a violation of fraud or willful misrepresentation. 
Counsel states that the director did not clearly identify in his decision any false statements or 
misrepresentations, and likewise, did not identify whether the misrepresentations are material, such that the 
beneficiary would be ineligible for the L-1A classification. With regards to each fraud indicator, counsel 
provides the following: (1) the beneficiary's limited English skills are not material to his ability to run the 
U.S. company, as is evidenced from the beneficiary's preliminary business activities with the petitioning 
organization; (2) the beneficiary made no misrepresentations of his ability to work as a manager or executive, 
and documentary evidence, such as the beneficiary's business plan, budget, and marketing study "rebut the 
inference that [the] beneficiary . . . was not aware of key aspects of the company"; (3) the "outdated business 
card and the constancy of the parent company's physical location in China do not appear to support a finding 
of fraud or willful misrepresentation" as other documents explaining the inconsistencies were submitted; and 
(4) a reverse directory search of the petitioner's telephone number is immaterial to the determination that the 
beneficiary is ineligible for classification as a manager or executive. Counsel contends that "[ilf any 
misrepresentations were made, whether purposely or inadvertently, they do not appear to meet the level of 
materiality sufficient to render the petitioner ineligible for a L-1A visa." 
On review, the record supports a finding that the director's reasons for the denial of the present petition are 
material and relevant to the eligibility requirements for classification as a nonimmigrant intracompany 
transferee. 
As a threshold question in this matter, the AAO notes that the misrepresentation of a material fact may lead to 
multiple consequences in immigration proceedings. First, as an evidentiary matter, the misrepresentation may 
impact the review and adjudication of the visa petition or immigration application. If CIS fails to believe that 
a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 9 1154(b); see 
also, Anetekhai v. INS, 876 F.2d 121 8, 1220 (5th (3.1989); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). Second, a material misrepresentation that is found to be willful under section 212(a)(6)(C) of 
the Act may make an alien ineligible to receive a visa and ineligible to be admitted to the United States. See, 
e.g., Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). 
 Finally, a CIS finding of willhl, material 
misrepresentation may lead to criminal penalties. See 18 U.S.C. $9 1001, 1546; see also, US. v. O'Connor, 
158 F.Supp.2d 697 (E.D. Va. 2001). 
WAC 02 186 5 1889 
Page 7 
With respect to the adjudication of a visa petition, a director has an affirmative duty to explain the specific 
reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of 
proof pursuant to section 291 of the Act, 8 U.S.C. 5 1361. See 8 C.F.R. 5 103.3(a)(l)(i). If the director's 
denial is based on evidence not submitted by the petitioner, the director shall first "notify the petitioner of his 
or her intent to deny the petition and the basis for the denial," and provide the petitioner with a period of thirty 
days during which to rebut the evidence. 8 C.F.R. 5 214.2(1)(8)(i). Moreover, the evidence upon which the 
director is relying must be relevant to the eligibility requirements for the visa classification sought by the 
petitioner, and may not be conclusory, speculative, or equivocal. See Matter of Arias, 19 I&N Dec. 568 (BIA 
1988) (finding that the observations of a consular officer that are conclusory, speculative, equivocal, or 
irrelevant to the eligibility requirements for a visa classification cannot serve as a basis for revocation, 
notwithstanding the petitioner's failure to timely respond to a notice of intent to revoke). 
In the present matter, the director based his denial of the nonimmigrant visa petition partly on the consular 
officer's finding that the beneficiary's foreign employer was not operating out of the premises identified by 
the beneficiary as the business' location. Upon visiting the supposed site of the foreign company, the 
consular officer instead concluded that the premises were occupied by a related company, and that the office 
was devoid of any "identifiers," such as corporate brochures or informational material, that the foreign 
company used the premises as its office. This finding is relevant to the beneficiary's eligibility as a 
nonimmigrant intracompany transferee, as it refutes the petitioner's claim that the foreign company is a 
qualifying organization. 
The pertinent regulations at 8 C.F.R. 5 214.2(l)(ii) define the term "qualifying organization" and related terms 
as follows: 
(G) Qualzfiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee; and, 
(3) 
 Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
WAC 02 186 51889 
Page 8 
(H) Doing business means the regular, systematic, and continuous provision of goods andlor 
services by a qualifying organization and does not include the mere presence of an agent or office 
of the qualifying organization in the United States and abroad. 
The record contains the following documentation submitted by counsel with the nonimmigrant petition as 
evidence that the foreign company is doing business abroad: (1) a translated explanation of the business of the 
beneficiary's foreign employer, which appears to be from one of the corporation's brochures; (2) a 
photocopied registration of the beneficiary's foreign employer as a limited liability company; (3) the foreign 
employer's office lease for the period from December 2000 through December 2002; (4) a photocopied 
picture of a building, which the petitioner labeled as "Business premises: News Building"; (5) the foreign 
employer's balance sheet and income statement dated December 2000; (6) photocopied bank statements for 
accounts held by the foreign employer at two financial institutions; (7) five partially-translated invoices that 
identify the foreign employer as the "purchaser"; (8) a sales contract identifying a separate company, 
Jingdezhen Globe China Company, as the seller of goods; and (9) copies of nine bank remittances during the 
period of August 2001 through November 2001. 
In response to the director's request for additional evidence, dated May 24, 2002, counsel provided the 
foreign employer's financial audit report for year 2001, including an assert and liability balance sheet, 
benefits and distribution, and cash flow sheet. Counsel also provided the foreign company's organizational 
chart. 
The director issued a second request for evidence on July 11, 2002, in which he asked that the petitioner 
provide the following evidence that the foreign company is doing business: (1) bank statements for the past 
twelve months; (2) a translated copy of the foreign company's listing in the telephone directory; and (3) 
income tax returns for the past two years. In a July 29, 2002 response, counsel submitted the foreign 
company's bank statements fiom four financial institutions for varying time periods, a social security 
verification record for the foreign company, and telephone records. Counsel also submitted a photocopied 
"sketch map" of the building in which the foreign company is located. 
The record as presently constituted does not contain sufficient documentation to refute the director's finding 
that the foreign company is not operating from its claimed location. As previously noted, this is significant in 
that there are inconsistencies as to the location from which the foreign company is operating, and whether the 
foreign company is in fact functioning separate from its holding companies.3 Following a site visit to the 
supposed location of the beneficiary's foreign employer, the consular officer determined that there were no 
"identifiers" that the office was the headquarters for the foreign company. The consular officer noted that the 
office was identified only as Shenzhen Central Electro-Mechanical Industrial Inc., and that it was devoid of 
brochures or materials identifying the beneficiary's foreign employer. 
 I 
The petitioner stated in a May 10, 2002 letter submitted with the nonimrnigrant petition that the foreign 
employer conducts business investment, domestic trade, and financial consulting through its holding 
companies. 
WAC 02 186 51889 
Page 9 
Although provided with two opportunities, the petitioner failed to submit conclusive documentation that the 
beneficiary's foreign employer was operating in units 2507 or 2508 of the News Building in Shenzhen, China. 
While the petitioner provided an office lease and a statement from the beneficiary attesting to the location of 
the petitioner's office, this evidence is insufficient to overcome the findings of the U.S. consular report. The 
AAO notes that the lease submitted in response to the director's notice relates to the purported joint venture 
partner, Jingdezhen Globe-China, Co, and its premises at No. 121 Zhushanzhong Road, Jingdezhen City. 
(Petitioner's exhibit 54.) The lease does not relate to the offices in question at Nos. 2057 and 2058 News 
Building. And although the petitioner submitted a copy of the lease for Nos. 2057 and 2058 News Building 
with the original petition, the lease expired on December 11, 2002, prior to the visit by the consulate 
investigator. (Petitioner's exhibit 10a.) The petitioner is obligated to clarify the inconsistent and conflicting 
testimony by independent and objective evidence. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Additionally, the beneficiary's self-serving, unsupported statement will not be given significant weight in this 
proceeding. See Matter of Kwan, 14 I&N Dec. 175, 177 (BIA 1972). Simply asserting on appeal that the 
office visited by the consular officer displayed the foreign employer's business license and pictures of the 
parent company's construction projects does not qualify as independent and objective evidence sufficient to 
overcome the consular officer's allegation that the office was not occupied by the beneficiary's foreign 
employer. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Crafi of California, 14 I&N Dec. 190 
(Reg. Cornm. 1972). 
Also, the beneficiary's attempt to explain the location of the office entrances in his statement on appeal 
creates an additional discrepancy. The beneficiary stated that the entrance to office 2507 is more noticeable 
to the public, whereas office 2508, the unit occupied by the beneficiary's foreign employer, "is located at the 
corner of the building and is hard to be noticed [sic]." The beneficiary also noted in his statement that "it is 
not strange to me if on the site visit, the person from the consulate only saw the business plate of Shenzhen 
Central Electro-mechanical Industrial Inc., and missed the business plate of [the beneficiary's foreign 
employer]." In fact, a "business plate" for the beneficiary's foreign employer is shown in a photograph 
previously submitted with the nonimrnigrant petition. Rather than being inconspicuous, as explained by the 
beneficiary, the sign appears to be several feet wide and is located next to two sets of large glass double 
doors. While the photograph may assist in demonstrating the existence of the foreign employer, it clearly 
contradicts the beneficiary's allegation that the consular officer could miss the entrance to the foreign 
employer's office. 
It is also noted that the photograph does not display an address or office number of the foreign company. It is 
therefore questionable whether the photograph is an accurate portrayal of the foreign employer's entrance, 
and if so, it remains unclear where the office is actually located. Again, it is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
WAC 02 186 51 889 
Page 10 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Furthermore, evidence that the 
petitioner creates after Citizenship and Immigration Services (CIS) points out the deficiencies and 
inconsistencies in the petition will not be considered independent and objective evidence. Necessarily, 
independent and objective evidence would be evidence that is contemporaneous with the event to be proven 
and existent at the time of the director's notice. Cf Matter of Bueno, 21 I&N Dec. 1029, 1033 (BIA 1997); 
Matter of Ma, 20 I&N Dec. 394 (BIA 199l)(discussing the evidentiary weight accorded to delayed birth 
certificates in immigrant visa proceedings). 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. See, e.g., Spencer Enterprises Znc. v. US., 345 F.3d 683, 694 (9th Cir., 2003). 
However, the incorrect address is not a minor discrepancy since it has bearing on the beneficiary's claimed 
overseas employment and the existence of the petitioner's alleged parent company. Anytime the petitioner 
fails to resolve the noted errors and discrepancies after CIS provides an opportunity to do so, those 
inconsistencies will raise serious concerns about the veracity of the petitioner's assertions. Id. Doubt cast on 
any aspect of the petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. In this case, the discrepancy noted 
above leads the AAO to conclude that the evidence of the beneficiary's eligibility is not credible. 
As an evidentiary matter, the petitioner's failure to resolve the alleged misrepresentation is fatal to this 
petition. The director's determination that the beneficiary's foreign employer is not operating from its 
claimed location is relevant is establishing whether the foreign company is doing business as a qualifying 
organization, as required in the regulation at 8 C.F.R. $214.2(1)(3). As the director satisfied his burden by 
notifying the petitioner of this discrepancy in both his intent to deny and decision, and the petitioner failed to 
provide independent objective evidence explaining the inconsistency, the AAO cannot conclude that the 
foreign company is doing business abroad. Consequently, the director's decision with regard to this issue is 
affirmed. 
The beneficiary's limited English skills and the reverse directory search of the petitioner's telephone listing 
are not relevant to the eligibility requirements for classification as a manager or executive in a new U.S. 
office. As correctly noted by counsel on appeal, the petitioner need only demonstrate that within one year of 
approval of the petition the beneficiary would be employed in a primarily managerial or executive capacity. 
The director's determination that the beneficiary's limited English skills would prevent his employment in the 
U.S. as a manager or executive is speculative, and does not warrant the denial of the petition. Additionally, 
counsel submits on appeal additional documentation establishing the existence of the U.S. business and its 
correct telephone number. Accordingly, the director's findings on these issues are withdrawn. 
The AAO will next address whether the beneficiary's statements constitute a misrepresentation as defined in 
section 212(a)(6)(C) of the Act, and therefore warrants the beneficiary's inadmissibility into the United 
States. 
WAC 02 186 51889 
Page 11 
As previously noted, section 212(a)(6)(C) states that an alien is inadmissible into the United States if he or 
she seeks to procure a visa or other documentation for admission into the U.S. by fraud or willfully 
misrepresenting a material fact. Fraud is considered to be "a false representation of material fact with 
knowledge of its falsity and with the intent to deceive a consular or immigration officer," which was believed 
and acted upon by the officer. 9 FAM 40.63 N3 (citing Matter of G, 7 I&N Dec. 161 (1956)). A material 
misrepresentation includes a willfully-made false misrepresentation concerning a fact that is relevant to the 
alien's visa entitlement. Id. 
For purposes of the Immigration and Nationality Act, the requirement of fraud or willful misrepresentation is 
satisfied by a finding that the misrepresentation was "deliberate and voluntary." Forbes v. INS, 48 F.3d 439, 
442 (9th Cir. 1995). Proof of an intent to deceive is not required, but rather knowledge of the falsity of a 
representation is sufficient. Id. 
In the present matter, the director concluded in his decision that the petitioner violated section 212(a)(6)(C) as 
a result of the statements made by the beneficiary, which the director concluded to be "fraud indicators." 
The AAO notes that the beneficiary signed the Form 1-129, Petition for Nonimmigrant Worker, at Part 6, 
certifying under the penalty of perjury that the petition and the submitted evidence is all true and correct. The 
Fonn 1-129 also reported the beneficiary's foreign employer as "Shenzhen Saichen Investment Development 
Co., Ltd." located at News Building, Suite 2507/08, No. 2 Shennan Mid. Road, Shenzhen, PRC. In support of 
this claim, the petitioner submitted a lease. (Petitioner's exhibit 10a.) A U.S. consular investigation revealed 
that the beneficiary's purported overseas employer was not located at the claimed address, leading the director 
to conclude that the petitioner and beneficiary misrepresented the location of the overseas office. As 
previously discussed, the petitioner and the beneficiary have failed to resolve this finding. 
The beneficiary's misrepresentations were clearly material to the petition's approval. The address of the 
overseas employer tends to prove the beneficiary's overseas employment and the existence of the claimed 
affiliated company. Both of these facts are essential to the beneficiary's eligibility. See 8 C.F.R. 9 214.2(1)(3). 
If the adjudicating CIS officer had believed that this representation was true, the officer would have likely 
approved the petition. "[A] concealment or misrepresentation is material if it 'has a natural tendency to 
influence or was capable of influencing, the decision of the decision-making body to which it was 
addressed."' Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (quoting Kungys v. United States, 485 U.S. 
759, 770 (1988)). The AAO concludes that the beneficiary misrepresented a material fact, specifically the 
address of his purported overseas employer. 
Despite our finding that the beneficiary misrepresented a material fact, the director's conclusion that the 
beneficiary violated section 212(a)(6)(C) of the Act was inappropriate within the context of her decision on 
the visa petition. The nonimrnigrant visa petition is not the appropriate forum for finding an alien 
WAC 02 186 51889 
Page 12 
inadrni~sible.~ See Matter of 0, 8 I&N Dec. 295 (BIA 1959). The director's decision that the petitioner 
violated section 212(a)(6)(C) is withdrawn. 
Instead of finding that the alien violated section 212(a)(6)(C) of the Act, the director needed only show that 
the petitioner or beneficiary made a material misrepresentation. This finding of fact would then be available 
for use in future proceedings where the alien's inadmissibility under section 212(a)(6)(C) of the Act would be 
a material issue, such as adjustment of status, change of status, extension of stay, or removal proceedings. 
See generally, $5 240,245, and 248 of the Act; see also 8 C.F.R. 5 214.l(f). Proof that an alien has made a 
material misrepresentation in the course of applying for an immigration benefit creates a rebuttable 
presumption that the alien procured or attempted to procure the benefit by means of this misrepresentation. 
Emokah v. Mukasey, --- F.3d ----, 2008 WL 1788268 (2nd Cir.) (citing Monter v. Gonzales, 430 F.3d at 557- 
8). To rebut this presumption, the alien must demonstrate that knowledge of his true circumstances would not 
have led to the denial of the benefit. Id. 
Pursuant to section 221 (g) of the Act, 8 U.S.C. 5 1201 (g), a consular officer has the authority to deny an alien 
a visa or other documentation if it appears from statements in the application or in the papers submitted 
therewith that such alien is ineligible to receive a visa or such other documentation under section 212, or any 
other provision of law, or if the application fails to comply with the provisions of the Act, or the regulations 
issued thereunder. The AAO, as a component office of the Department of Homeland Security, makes no 
comment on the State Department's finding of misrepresentation under section 212(a)(6)(C) of the Act. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
4 
 However, the prohibition against inadmissibility determinations in petition adjudications does not bar a 
"finding of fact" regarding fraud or material misrepresentation. 
 Although the visa petition is not the 
appropriate forum for finding an alien inadmissible, the Administrative Procedure Act (APA) requires that the 
CIS decision include a statement of findings and conclusions on all material issues of law or fact, which 
would necessarily include findings of fraud and material misrepresentation. 5 U.S.C. § 557(c). After a CIS 
officer makes the finding of fraud or material misrepresentation, the alien may be found inadmissible at a later 
date in separate proceedings. 
WAC 02 186 51889 
Page 13 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. Ji 1361. Here, that burden has not been met. The director's 
decision will be affirmed in part and withdrawn in part, and the petition will be denied. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The AAO finds that the beneficiary submitted a petition containing false statements in 
an effort to mislead CIS and the AAO on an element material to the beneficiary's 
eligibility for a benefit sought under the immigration laws of the United States.