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MATTER OF S-1-, INC.

APPEAL OF TEXAS SERVICE CENTER DECISION '

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 27,2016

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, which operates a convenience store in Texas, seeks to permanently employ the Beneficiary as its president/director under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. § 1153(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, Texas Service Center, approved the petition but later revoked that approval. The Director concluded that the evidence of record did not establish: (1) a qualifying relationship between the Petitioner and the Beneficiary's foreign employer; (2) that the Beneficiary will be employed in the United States in a managerial or executive capacity; (3) that the Beneficiary has been employed abroad in a managerial or executive capacity; or (4) the existence of a valid job offer. The Director also entered a finding of willful misrepresentation of a material fact.

The matter is now before us on appeal. In its appeal, the Petitioner submits an affidavit and asserts that the Director erred by issuing the revocation notice several years after the approval of the petition .

Upon de novo review, we will dismiss the appeal and affirm the finding of willful misrepresentation of a material fact.

I. REVOCATION

Before we discuss the grounds for revocation, we will address a procedural complaint that takes up much of the appellate brief. The Petitioner filed Form I-140 on August 24, 2004. U.S. Citizenship and Immigration Services (USCIS) approved the petition on June 30, 2005; issued a notice of intent to revoke (NOIR) on May 10, 2010, and a second NOIR on September 11, 2014; and revoked the approval on March 16, 2015.

The Petitioner states that "in 2004 and 2005, the standards of proof in adjudicating an I-140 petition ... were much different from today's standards which are much more rigorous. Yet, the revocation in this matter seeks to apply today's standards to the adjudication." The Petitioner submits no evidence to

Matter ojS-1-,Inc.

support the claim that standards have changed. 1 In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.2 The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit sought.3

Also, the Act states: "The Secretary 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" (emphasis added).4 The passage of time does not convey immunity from revocation or shift the burden ofproofto USCIS.

II. LEGAL FRAMEWORK

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 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien 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.

1 Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. I, 3 n.2 (BlA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 2 See section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013); Matter ofBrantigan, II I&N Dec. 493 (BIA 1966). 3 See Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 4 Section 205 of the Act, 8 U .S.C. § 1155. The Board of Immigration Appeals has stated:

In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of· record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial.

Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)).

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A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor certification is not required for this classification.

The regulation at 8 C.F.R. § 204.50)(3) states:

(3) Initial evidence-

(i) Required evidence. A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:

(A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

(B) If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;

(C) The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and

(D) The prospective United States' employer has been doing business for at least one year.

III. WILLFUL MISREPRESENTATION OF A MATERIAL FACT

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.

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Under Board of Immigration Appeals (BIA) precedent, a material misrepresentation is 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."5 A willful misrepresentation requires that the Beneficiary knowingly make a material misstatement to a government official for the purpose of obtaining an immigration benefit to which the Beneficiary is not entitled.6 Material misrepresentation requires only a false statement that is material and willfully made. 7 The term "willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. 8

In a request for evidence (RFE) issued March 31, 2005, the Director asked for copies of IRS Forms W-2, Wage and Tax Statements for the Petitioner's employees. One of the W-2 forms included with the Petitioner's response indicated that the Beneficiary earned $36,000 in 2004.

In response to the 2010 NOIR, the Petitioner submitted copies of its IRS Forms 1120, U.S. Corporation Income Tax Returns, for 2004 through 2009. The returns were marked "self-prepared," and the Beneficiary signed each one. Each of these returns indicated 100% foreign ownership of the petitioning company on line 7 of Schedule K.9 The 2004 tax return indicated that the Petitioner paid $132,654 in salaries and wages, and an additional $72,000 in compensation of officers. The Petitioner submitted copies of nine IRS Forms W-2 for 2004, but not all of the forms matched the versions submitted earlier. Some of the recipients differed, and the new version of the Beneficiary's 2004 W-2 form showed earnings of $20,000.

In the 2014 NOIR, the Director also asked for complete copies ofiRS filings from 2003 through 2013 "to clarify what was actually submitted to the IRS." The Petitioner submitted copies ofiRS Form 1120 income tax returns for 2003 through 2013, and IRS transcripts of the returns from 2010 to 2013.' The returns for 2003 to 2008 are unsigned. The returns for2004 through 2009 do not match the returns that the Petitioner had previously submitted in response to the 2010 NOIR.

In an affidavit dated November 11, 2014, the Beneficiary stated that a third party prepared the response to the 2010 NOIR, and that he (the Beneficiary) did not recognize the figures on the tax returns in that NOIR response. He stated: "I never knowingly provided false IRS tax returns for [the petitioning company] to any of my previous attorneys .... I Clo not know why altered tax retlirns were submitted to USCIS in connection with my immigration." The claim that the Beneficiary was unaware of the versions submitted in 2010 is contradicted by his signature on those returns.

5 Matter ofS- and B-C-, 9l&N Dec. 436,447 (BIA 1961). 6 Sergueeva v. Holder, 324 Fed. Appx. 76 (2"d Cir. 2009) (citing Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). 7 See 9 FAM 40.63 N2; see also Matter ofTijam, 22 I&N Dec. 408,424 (BIA 1998) (en bane) (Rosenberg, concurring). 8 See Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). 9 The returns varied in the responses to Schedule K, line 5, which asked whether any person or entity owned 50% or more of the petitioner's voting stock. The Petitioner answered "yes" on the 2004 through 2007 returns, and "no" on the 2008 and 2009 returns.

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In an affidavit dated November 10, 2014, bookkeeper stated that he prepared the Petitioner's income tax returns beginning in 2004, and that he "was never told by [the Beneficiary] that [the Petitioner] had foreign ownership .... This is the reason why the foreign ownership schedule to the tax return was never completed." stated that he no longer had original returns from before 2009. The assertion that began preparing the Petitioner's tax returns in 2004 conflicts with the "Self-Prepared" annotation on the returns in. the 2010 submission.

The Petitioner also submitted copies of IRS Forms 941 , Employer' s Quarterly Federal Tax Returns, prepared by Three of the returns purport to be from 2004, but they are 2006 forms with dates altered by hand to read 2004. The Beneficiary signed these altered returns.

The Petitioner also submitted IRS Forms 940, Employer's Annual Federal Unemployment Tax Returns. On one form, the year "2006" has been crossed out and replaced with a handwritten "2004." On another form, the year has been changed to 2005 by writing a "5" over the final digit. The Petitioner also submitted copies of IRS Forms W-2 and W-3 (Transmittal of Wage and Tax Statements) with a handwritten "5" in place of the original digit. The Form W-3 in the record refers to "the 2009 instructions for Forms W-2 and W-3," and cannot have existed in 2005 or early 2006.

In the revocation notice, the Director stated: "The beneficiary, as owner of the petitioner, has submitted false evidence in the form of conflicting tax documents. These documents were submitted in an attempt to show the qualifying relationship between the foreign and U.S. entit[ies]." Although ability to pay the Beneficiary's salary was not a stated ground 'for revocation, the Director also noted that the altered tax returns included false information about the Petitioner's finances and were therefore material to the Petitioner's ability to pay the Beneficiary' s salary.

In the revocation notice, the Director stated: "The beneficiary, as owner of the petitioner, has submitted false evidence in the form of conflicting tax documents. These documents were submitted in an attempt to show the qualifying relationship between the foreign and U.S. entit[ies]." In addition, while not a basis for revocation, the tax returns are also material because the regulations require their submission to establish ability to pay the Beneficiary's proffered wage. 10 Also, the returns contain information about compensation of employees, which is relevant to the issue of the Petitioner's staffing. By submitting returns that exaggerated the company's earnings and its salary expenditures, the Petitioner cut off lines of inquiry about both the size of the company and its ability to compensate the Beneficiary. The Beneficiary's signature appears on both sets of tax returns, indicating his personal endorsement of the information found on those forms. Also, as president of the petitioning company, he is responsible for the documents submitted in support of the petition.

10 See 8 C.F.R. § 204.5(g)(2). Because the Petitioner submitted two conflicting IRS Forms W-2 regarding the Beneficiary' s 2004 compensation, the Director found that "the petitioner apparently submitted a false [IRS] Form W2 for the beneficiary with the initial filing to show the petitioner was paying the beneficiary the proffered wage." The Petitioner does not address this information on appeal. As the Director noted, this defici ency was not a stated ground for revocation, but the record supports the Director's assessment of the evidence, and the petition cannot be approved.

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The two versions ofiRS Form 1120 tax returns, both signed by the Beneficiary, cannot both be correct. The petitioner's submission of two conflicting versions of these tax returns amounts to willful misrepresentation of a material fact.

On appeal, the Beneficiary states: "I never committed any fraud nor did the company," nor various attorneys or paralegals who have handled the case. The Beneficiary does not, however, offer a detailed response to the Director's specific findings. The Beneficiary's statement does not explain why his signature appears on two conflicting sets of tax returns, or why the company submitted two different 2004 IRS Forms W-2 in the Beneficiary's name. The legal brief submitted on appeal does not address the fmding of misrepresentation at all, and therefore neither overcomes nor contests that finding. Therefore, we will not disturb the Director's finding of willful misrepresentation of a material fact.

IV. QUALIFYING RELATIONSHIP

The Director revoked the approval of the petition based, in part, on a finding that the Petitioner did not establish that it has a qualifying relationship with the Beneficiary's foreign employer.

To establish a "qualifying relationship" under the Act and the regulations, a petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates."11

The pertinent regulations at 8 C.F.R. § 204.50)(2) define the relevant terms. Generally, the term "affiliate" means either one of two subsidiaries both of which are owned and controlled by the same parent or individual, or one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity.

The same regulation defines a "subsidiary" as:

a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the 'entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. '

Elsewhere, the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(J) defines a "branch" as "an operating division or office of the same organization housed in a different location."

A. Evidence ofRecord

The Petitioner's initial submission did not include any evidence of a qualifying relationship with a foreign entity.

11 See generally section 203(b)(I)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C).

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The Director's 2010 NOIR did not address the qualifying relationship between the Petitioner and the foreign company, but the Petitioner's response to that notice included relevant information.

(sometimes spelled , vice president of the petitioning company, stated in an undated letter: "Our company is owned by m Pakistan which merged with

in 2006, and is now known as ' He referred to the Petitioner as the "U.S. Branch office" of In a letter dated June 7, 2010, partner at referred to the Petitioner as "our U.S. Branch office." A letter dated May 14, 2010, from the in Pakistan, stated that "as per

record has been merged with

As noted above,.the Petitioner's initial copies of2004-2009 IRS Form 1120 returns were inconsistent as to whether any one person owned a controlling interest in the company. In the second NOIR, the Director noted that references to the Petitioner as a branch of the foreign entity are inconsistent with other documents indicating that the Petitioner is a wholly-owned subsidiary of the foreign entity (unlike a branch, a subsidiary is a separate legal entity). The Director also instructed the Petitioner to submit documentation to "clarify the structure and ownership ofthe foreign entity" and to· establish that

'is a successor in interest to the original foreign entity,

In response to the 2014 NOIR, the petitioner submitted copies of a share certificate, transfer sheet, and share transfer ledger, all dated April 9, 2002, and all indicating sole ownership of the petitioning company. Attorney stated that he recreated all of these documents several years after the fact, without access to the original documents, because the Petitioner "has been unable to locate the original" materials.

In the notice of revocation, the Director noted the conflicting claims that the Petitioner is either a branch or subsidiary of the foreign company, and found that the Petitioner had not shown that had acquired or was otherwise that company's successor in interest. The Director stated that newly recreated documents, backdated several years to 2002, lack probative value.

On appeal, the Beneficiary maintains that the Petitioner is "wholly-owned by the foreign entity," but the Petitioner does not otherwise address the issue of the qualifying relationship on appeal.

B. Analysis

Upon review of the petition and the evidence of reco:rd, including the submission on appeal, we find that the Petitioner has not established that it has a qualifying relationship with the foreign entity.

Ownership and control determine whether a qualifying relationship exists between United States and foreign entities for purposes of this visa classification. 12 In this proceeding, ownership refers to the

12 See Matter of Church Scientology Int'l, 19 I&N Dec. 593 (BIA 1988); see also Matter ofSiemens Med. Syss., Inc.,

19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm 'r. 1982).

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direct or indirect legal right of possession of the assets of an entity with full power and authority to control; control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. 13

c

The Beneficiary, on appeal, maintains that a qualifYing relationship exists between the U.S. and foreign companies, but the Petitioner submits no evidence to overcome the findings in the revocation notice. The Petitioner has also not documented claimed acquisition of Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 14

The Director was justified in raising concerns about the qualifying relationship between the Petitioner and the foreign entity. The backdated replicas of the Petitioner's stock certificate and accompanying documents have negligible evidentiary value. The Petitioner asserts that documents can be lost or destroyed over time, but the Petitioner has submitted copies of numerous invoices, permits, and other documents which date, or purport to date, back to 2004. These materials, if authentic, establish the Petitioner's ability to retain and produce copies of records from that period.

I

The Beneficiary's assertion on appeal that the Petitioner is "wholly-owned by the foreign entity" does not rebut the Director's detailed discussion of the issues relating to the Petitioner's claimed qualifying relationship with the foreign company ..

The Director found that the Petitioner has submitted incomplete and conflicting evidence regarding the ownership of the petitioning company. The record supports this finding, to which the Petitioner has offered no specific or supported response on appeal. Prior attempts at explanations have only introduced further questions. The Petitioner has been unable to produce original, first-hand documentation of ownership, relying instead on backdated reproductions. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 15 Where the record contains inconsistencies, the Petitioner's explanation alone cannot suffice. The Petitioner must support that explanation with competent, objective, independent evidence. 16 The Petitioner has not provided that evidence.

Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that it has a qualifying relationship with or with

/

V. JOBOFFER

The Director based the revocation, in part, on a finding that a bona fide job offer no longer exists. The regulation at 8 C.P.R.§ 204.5(j)(5) requires the petitioning U.S. employer to furnish a job offer. If the

13 See Church Scientology Int 'I, 19 I&N Dec. at 595. 14 See Soffici, 22 I&N Dec. at 165. 15 Ho, 19 I&N Dec. 591. 16 See id. at 582, 591-92.

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Petitioner is no longer doing business, defined as the regular, systematic, and continuous provision of goods and/or services, 17 then it has not demonstrated that a bona fide job offer still exists.

A. Evidence ofRecord

The Petitioner's initial submission included copies of licenses and other documents showing that the Petitioner was doing business as a store on Texas. When the Director issued the first NOIR on May 10, 2010, the Director requested evidence to show that the Petitioner was still doing business.

In response, stated that the Petitioner "is operating several convenience retail stores in the state of Texas under the assumed name The Petitioner submitted copies of various bills, permits, and invoices establishing activity at in Texas, from 2004 to 2006. Later documents related to activity at other addresses in various cities in Texas, such as a

in and a (sometimes called in Bank statements from throughout 2004 to 2009 identify the account holder as the Petitioner, again at various addresses. By 2009, all of the documentation relates to one street address and one post office box, both in The materials from 2009 do not refer to the m or to

at any address other than on m

As noted previously, the Petitioner's response to the 2010 NOIR included copies ofiRS 1120 corporate income tax returns for 2004 through 2009. Those forms purported to show that the Petitioner paid over $200,000 per year in salaries and officer compensation. The Petitioner asserted that the response to the NOIR included the requested copies of IRS Forms W-2 from 2004 through 2009. The Petitioner resubmitted copies of several employees' IRS Forms W-2 for 2004, but only the Beneficiary's forms for 2005 through 2009.

In the 2014 NOIR, the Director advised the Petitioner that "an investigation by USCIS in 2011 indicates the business located in Texas may no longer be controlled by the petitioner." The Director instructed the Petitioner to submit "evidence that the U.S. entity has been continuously doing business ... in the United States since the petition was filed on August 25, 2004."

In response, in an affidavit dated November 11, 2014, the Beneficiary stated that the Petitioner has had "several locations since the business first began in 2003," but only one at a time. These locations include: on (January 2003-April 2006); on

(May 2006-June 2006); (August 2006-April 2007); and on

The Beneficiary stated that at the same location in

17 8 C.F.R. § 204.50)(2).

changed its name to The Beneficiary also stated:

9

on (November 2007-Present).

in October 2011, but remained

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On October 13, 2010, was incorporated as a completely owned subsidiary of ... Since [the Petitioner] had a tax balance due to an IRS auditor's error, was created to assume all of the rights and obligations of [the petitioning company]. is the affiliate of [the Petitioner]. Since October 13, 2010, has been running the operation [on] Texas.

The. Petitioner submitted a copy of a letter to the Beneficiary, dated July 1, 2010, from stated: "it is decided that a new corporation in the Name of

may be opened which will later on take over the business of [the petitioning company]." Another letter from dated October 10, 2014, indicated that "has been merged into

... Since then [the Petitioner] is being managed by ...._ __ __,

The Petitioner submitted copies of documentation showing that was incorporated in Texas on October 13, 2010. provided recreations ofthat company's share certificate and other materials, stating that they, like the Petitioner's documents, "have been lost or destroyed." The recreated documents identified as the new company's sole owner.

The Petitioner submitted copies of various permits granted to the various convenience stores named in the Beneficiary's affidavit. Most of the permits show only the names of the respective stores, rather than the name of the company that owns each store, but there are Texas-issued certificates from 2014 that state the name of either the Petitioner or (but never both) in relation to the

store in

The Petitioner' s IRS Form 1120 returns from 2012 through 2013, substantiated by IRS transcripts, show that the Petitioner reported no income or expenses during those years.

In the revocation notice, the Director stated that "[t]he petitioner has submitted discrepant and confusing documentation, .and has not provided a compelling narrative with supporting objective evidence to explain the conflicting documents." The Director noted the absence· of evidence to support the Petitioner's claim that is the Petitioner's successor in interest. The Director also noted that, under 8 C.F .R. § 205.1, the Petitioner' s cessation of business would be grounds for automatic revocation of an approved petition.

On appeal, the Petitioner's appellate brief does not directly address this ground for revocation, but alludes to it by asserting that the Director improperly relied on evidence relating to the period after the filing of the petition. In a separate affidavit, dated March 31, 2015, the Beneficiary states: "I am still the Director/President of [the petitioning company] and now also The business is running and there are employees that I manage and supervise. The company is about to undergo a major expansion which will double its size."

The Petitioner has since supplemented the record with bank documents and other materials which refer to DBA [doing business as]

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B. Analysis

For the reasons discussed below, we find that the Petitioher has not overcome the Director's finding that the Petitioner has not established the continued existence of a bona fide job offer.

In his latest affidavit, the Beneficiary claims that the Petitioner and "are involved in retail businesses," and that the Petitioner has employees and "is about to undergo a major expansion." The Petitioner submits no evidence on appeal to support these assertions, ·and these uncorroborated claims have little to no weight as evidence. 18 The IRS transcripts of the Petitioner's 2012 and 2013 tax returns indicate that the Petitioner did not undertake any financial activity during those years apart from reporting depreciation. The Petitioner reported no income, purchased no inventory, and paid no salaries.

Apart from the lack of corroboration, the Petitioner's overall credibility is a factor that we must consider. 19 At various times in this proceeding, the Petitioner has provided inaccurate information regarding the nature of its then-current business activities. As noted above, the Petitioner has submitted conflicting tax documents and employee information. In 2010, stated that the Petitioner "is operating several convenience retail stores." The Beneficiary contradicted that claim in his 2014 affidavit, when he indicated that the Petitioner had operated at several locations, but in succession rather than concurrently.

The Petitioner's latest submission includes printouts from the Texas Office of the Comptroller, showing that both the Petitioner and are listed as "active" companies. The Petitioner asserts that it now "exists under the umbrella of which operates as

dba '"

The record establishes that exists and does business under the Petitioner's name. Nevertheless, the Petitioner continues to exist as a corporate entity, and its evident cessation of profit­generating activity precludes a finding that the Petitioner is a viable business able to employ and compensate the Beneficiary. use of the Petitioner's name does not allow the newer entity to replace the Petitioner in this proceeding.

The Petitioner cites a recent precedent decision, stating that a company can be "doing business" even if that business consists entirely of internal transactions within the larger organization?0 The Petitioner, however, has not shown that it provides goods or services to Any such transactions would have appeared on its 2012 and 2013 tax returns. The Petitioner has submitted copies of its bank statements, but the most recent one in the record dates from October 2011 (the last year that its tax return showed business activity). may conduct business under the Petitioner's name, but there is no evidence that the Petitioner itself remains commercially active either

18 See Soffici, 22 I&N Dec. at 165. 19 See Ho, 19 I&N Dec. 591. 20 Matter ofLeacheng International, Inc., 26 l&N Dec. 532 (AAO, 2015).

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with the public or with The Petitioner has not shown that it is still doing business, or that it has any employees.

The Petitioner claims that is, like the Petitioner, a subsidiary of but the evidence supporting this claim suffers the same deficiencies that diminish claims of the Petitioner's own association with that company. Both companies' corporate documents are new, backdated reconstructions created by a third party who had no access to the original documents.

The Petitioner, in the appellate brief, does not address this issue directly. More broadly, however, the Petitioner seeks to establish that the Director ·should not have considered recent developments.

In another context, the Director had cited Matter of Katigbak1 and Matter of Izummi,22 which indicate that the Petitioner must establish eligibility at the time of filing the petition, and that subsequent developments cannot cause the petition to be approvable if it was not already approvable at the time of filing. Noting that the Director had cited Katigbak and Izummi in the revocation notice, the Petitioner states that the Director made "a .correct statement of the law in regard to the inadmissibility of facts that arise after the filing of the petition." The Petjtioner contends that the Director went against this principle by requesting and citing "evidence throughout the history of the petitioner." The Petitioner asserts: "If favorable evidence that arises after the filing of the petition cannot be considered, then unfavorable evidence, likewise, cannot be considered as well. USCIS cannot have it both ways."

The cited cases do not establish "the inadmissibility of facts that arise after the filing of the petition." Rather, they establish that a previously ineligible petitioner cannot become eligible through qualifications obtained after the petition's filing date. Katigbak addresses this point:

A petition may not be approved for a [classification] for which the beneficiary is not qualified at the time of its filing. The beneficiary cannot expect to quality subsequently ... and then still claim a priority date as of the date the petition was filed, a date on which he was not qualified .

. . . It is clear that it was the intent of Congress that an alien be ... fully qualified ... at the time the petition is filed. Congress did not intend that a petition that was properly denied because the beneficiary was not at that time qualified be subsequently approved at a future date ' when the beneficiary may become qualified under a new set of facts. To do otherwise would make a farce of the preference system and priorities set up by statute and regulation.23

This language does not preclude USCIS from taking into account disqualifYing circumstances that may arise after the filing of a petition. The Petitioner must establish eligibility "at the time of filing the

21 14 I&N Dec. 45,49 (Reg'] Comm'r 1971). 22 22 I&N Dec. 169, 175 (Comm'r 1998). 23 Katigbak, 14 I&N Dec. at 49.

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benefit request and must continue to be eligible through adjudication" (emphasis added)?4 Clearly, these regulations contemplate that qualifYing circumstances must continue to exist past the filing date. The revocation provisions at section 205 of the Act and the regulations at 8 C.F.R. § 205 establish consequences even if the disqualifYing circumstances arose after approval of the petition.

'

For the reasons discussed above, the Petitioner has not met its burden of proof to establish, by preponderance of evidence, that it is still actively engaged in business and is able to employ the Beneficiary in a qualifYing capacity as a manager or executive. The Director acted properly by revoking the approval of the petition based, in part, on evidence that the Petitioner no longer actively conducts business that would require the continued employment of a manager or executive.

VI. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY

The Director denied the petition based in part on a finding that the Petitioner did not establish that: (1) the Beneficiary will be employed in a managerial or executive capacity; and (2) the Beneficiary has been employed abroad in a managerial or executive capacity.

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an assignment within an organization in which the employee primarily: (i) manages the organization, or a department, subdivision, function, or component of the organization; (ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; (iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an assignment within an organization in which the employee primarily: (i) directs the management of the organization or a major component or function of the organization; (ii) establishes the goals and policies of the organization, component, or function; (iii) exercises wide latitude in discretionary 'decision-making; and (iv) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

24 8 C.F.R. § l03.2(b)(l). Cf 8 C.F.R. § 204.5(g)(2), which requires evidence of the Petitioner's ability to pay the Beneficiary's proffered wage at the time of filing and "continuing until the beneficiary obtains lawful permanent residence."

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If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization?5

A. U.S. Employment in a Managerial or Executive Capacity

The regulation at 8 C.P.R. § 204.5G)(5) requires the Petitioner to submit a statement which indicates that the Beneficiary is to be employed in the United States in a managerial or executive capacity. The statement must clearly describe the duties to be performed by the Beneficiary.

We have already established, above, that the Petitioner appears to have ceased doing business in 2011, and therefore, if a valid job offer ever existed, it no longer does. Below, we will briefly consider whether the Petitioner had previously offered the Beneficiary a managerial or executive position.

1. Evidence ofRecord

On Form I-140, the Petitioner indicated that it had eight employees as of the petition's filing date. In a letter dated July 13, 2004, stated that the Beneficiary "has been President of our company since 2002." Regarding the Beneficiary's functions at the company, stated:

[The Beneficiary] will continue to manage the operations ofthe company. As president he would still be responsible for the recruitment of employees including managers and lower level field staff as well as their training and termination if need be. Moreover, [the Beneficiary] would continue to provide direction to the organization with respect to long term goals and policies. He would also be responsible for making decisions regarding the partnerships [the Petitioner]. engages in, the contracts that it procures, the negotiations that it enters into as well as liaising with other managers and executives on production, marketing and sales issues.

An organizational chart showed the following hierarchy: The Beneficiary, as president; vice president; two managers; and four employees, two for each manager.

as

In the May 10, 2010 NOIR, the Director cited "the lack of evidence that the beneficiary is working in a managerial/executive capacity in the US company." The Director requested additional details about the Beneficiary's daily duties.

In response, stated that the Beneficiary "supervises the Vice President, and General Manager, who in turn supervise the retail sales associates." He stated that the Beneficiary spends 50% of his time "managing and directing the operations of the company"; 30% ofhis time handling financial matters; and 20% of his time on personnel functions. stated that the Beneficiary's

25 See section IOI(a)(44)(C) ofthe Act.

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subordinates consisted of as vice president; one manager; and the remaining employees were all sales associates, for a total of"l3 people."

In his letter of June 7, 2010, stated that the Beneficiary "is the Managing Director of our company and he is serving as the President of Operations for our U.S. branch office .... This position offers us the opportunity to continueto utilize his services as an executive consultant."

In the NOIR issued September 11, 2014, the Director stated that the "list of vague and general job duties is insufficient to provide an understanding of the tasks the beneficiary will do on a daily basis." The Director also concluded, from the sums shown on the IRS Forms W-2, that the Beneficiary was the Petitioner's "only full-time employee in 2004." '

Noting that the Petitioner's bookkeeper earned only $1586.80 in 2004, and the Petitioner's assertion that "the beneficiary will spend 30% ofhis time overseeing and managing the petitioner's finances," the Director stated: "It is difficult to understand how such an arrangement relieved the beneficiary from handling nearly all the financial tasks for the firm." The Director also stated: "it is hard to comprehend how the beneficiary spent 50% of his time managing two managers who worked so few hours that each earned less than $6,200."

In response, the Beneficiary stated:

My job duties included: contacting and negotiating with the vendors ... regarding the pricing and contract terms . . . , generally managing the employees including hiring, firing and approving schedules, managing the bank account records for the business, ordering all of the inventory from a variety of vendors ... , and ensuring all equipment is operational and coordinating the repairs as necessary.

The Beneficiary also stated that almost every employee was either part-time or worked a "floating schedule." Most of the identified employees worked for the Petitioner for less than two months in 2004.

As noted above, the Petitioner's response to the 2014 NOIR included new copies of tax documents and the Beneficiary's affidavit disclaiming any knowledge or responsibility for the returns submitted previously. According to the newly submitted 2004 tax return, the Petitioner paid a total of $34,117 in salaries and wages that year, with no reported compensation of officers.

In the revocation notice, the Director stated that the duties the Beneficiary described in his affidavit "are those necessary for the business to exist, and do not appear to be executive or managerial as envisioned by the regulations." The Director found that the Petitioner's staffing "would not allow the beneficiary to perform duties that are primarily managerial in nature." The Director also noted that the Petitioner operated only one store at the time it filed the petition, and that any subsequent growth cannot retroactively establish eligibility as of the filing date.

On appeal, the Petitioner acknowledges this case law, but maintains that "the relevant criteri[on] is the job description of the beneficiary- not the number of stores owned by the petitioner." The Beneficiary,

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in his new affidavit, asserts that he is "still the Director/President of' the petitioning company, but offers no detailed response or rebuttal to the Director's specific findings.

2. Analysis

Upon review of the petition and the evidence of record, including materials submitted ip support of the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity in the United States.

indicated that the Beneficiary spends half of his time "managing and directing the operations of the company," "implement[ing] corporate merchandising policies, procedures, and programs; consult[ing] with Parent company regarding financial status and planning for future growth." These terms are very broad, and provide little information about exactly what the Beneficiary is doing while performing these functions. The same can be · said of assertion that the Beneficiary devotes 20% of his time to overseeing the vice president and store managers and ensuring the integrity of the personnel process. The -lack of specific information, combined with the grouping of several diverse functions into broad categories, means that the Petitioner has provided insufficient information about the Beneficiary' s claimed duties.

stated that the Beneficiary devotes 30% of his time to financial functions. Accounting and bookkeeping are operational tasks, rather than managerial or executive ones. · The assertion that the Beneficiary "[ d]irects all accounting functions" raises the question of whom the Beneficiary directs in this manner. The Petitioner has not established the presence of a full-time accountant or other staff who would relieve the Beneficiary from performing non-qualifying financial tasks.

There is considerable overlap between the two versions o±:_the Petitioner's 2004 employee list, but the discrepancies between the lists indicate that neither list is completely reliable. Whichever version is more credible, the IRS Forms W-2 indicated that the Beneficiary was the only employee who earned more than $8,000 in 2004. The only employee identified as full-time earned less than $6,000, which is not consistent with nine to ten months of full time employment as the Petitioner has claimed. The Director found that the Petitioner has not established that it employs sufficient subordinate staff to relieve the Beneficiary from primarily performing non-qualifying duties. The Petitioner, on appeal, does not directly address this finding.

Furthermore, the IRS-stamped tax return that the Petitioner submitted in response to the 2014 NOIR indicates that the Petitioner paid only $34,117 in salaries and wages in 2004. This is not consistent with any of the figures that the Petitioner had previously submitted regarding salaries paid that year. This is a major discrepancy, which the Petitioner has not adequately addressed. Acknowledging the alterations while disavowing responsibility cannot suffice in this regard.

It is clear that the Petitioner's IRS Forms 940 and 941 pertaining to 2004 were not prepared until 2006 at the earliest, because the forms are the 2006 editions. This is consistent with the second submission of IRS Form 1120 tax returns, showing that the Petitioner did not file its 2004 return until August 30, 2007. Late filing of tax returns does not disqualify the Petitioner for immigration benefits, but the

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timing raises serious credibility questions. The Petitioner submitted 2004 IRS Forms W-2 in response to the 2005 RFE, two years before it filed the tax return corresponding to those forms. The Beneficiary's own 2004 IRS Form W-2, as submitted in 2005, does not match the form included with the backdated materials submitted with the 2014 NOIR response. As we have already explained, the existence of conflicting sets of tax documents is a matter of serious concern.

By the same token, the Petitioner is correct that it need not operate more than one store at a time, but one of its officials claimed that the company operated several locations at once. If this is not true, then that official provided false information in a proceeding with many other credibility issues.

The Petitioner has provided insufficient and conflicting information about its staffing in 2004. The Petitioner has not met its burden of proof to show, by preponderance of evidence, that it has employed the Beneficiary in a primarily managerial or executive capacity. The Petitioner's apparent cessation of business operations indicates that it will not employ the Beneficiary in such a capacity in the future. USCIS cannot properly approve the p,etition, and the Director did not err by revoking the prior approval.

Based on the deficienci~s and inconsistencies discussed above, the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity in the United States.

B. Foreign Employment in a Managerial or Executive Capacity

If the Beneficiary is already in the United States working for the foreign employer or its subsidiary or affiliate, then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a statement from an authorized official of the petitioning United States employer which demonstrates that, in the three years preceding entry as a nonimmigrant, the Beneficiary was employed by the entity abroad for at least one year in a managerial or executive capacity:

1. Evidence of Record

The Beneficiary entered the United States on October 8, 2001, and was still in the United States at the time the Petitioner filed the petition. An undated statement, signed by a partner of stated that the company's management consisted of a partner/managing director; a partner/director; and the Beneficiary as general manager/legal advisor. The statement indicated that the company employed "150 staff members which includes, [sic] Managers, Clerks, Shift Incharges, Supervisors laborers [sic] and Security staff." An organizational chart showed the following hierarchy: managing director; director; general manager; import manager, marketing manager, and export manager; and six subordinates (two for each manager), identified only as "employee[s]."

In a March 31, 2005, request for evidence (RFE), the Director asked for a letter from the foreign employer, detailing the Beneficiary's job duties and level of authority. In response, the Petitioner submitted an unsigned letter on letterhead, dated April16, 2005. It reads, in part:

[The Beneficiary] was responsible for all strategic and direction setting decisions of the company. He formulated strategies, policies and procedures. He oversaw the

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responsibility for advertising and promotional campaigns. He also looked after institutional sales including sales to government agencies. As General Manager, he supervised and fired all of the managerial personnel in our company. He ensured business expansion and growth by introducing new product lines.

The letter indicated that the Beneficiary spent 25% of his time overseeing the marketing operation and hiring subordinate personnel; 20% of his time directing promotional and marketing activities; 25% of his time on tasks relating to growth and development; and "around one third of his time" representing the company and monitoring trends.

The statement listed the managers who reported to the Beneficiary:

National Sales Manager (Government): Responsible for heading the team working for government business through participation in bids and tendering process. Handles the day-to-day operations of the department. Oversees dealing with the finance and account department to establish bid prices for the projects. Responsible for preparation of periodic reports for management review and regulatory reporting. Handles the scheduling of employee hours. Hires, trains, supervises, and fires lower echelon employees.... ·

National Sales Manager Sales [sic] (NR Division): Handles sales to general industries and multinational enterprises. Oversees the supply of goods and services to the corporate clients and ensure[ s] that client specifications are adhere[ d] to. Supervise staff in the department to ensure proper processing of orders. Deals with other departments to establish priorities with a view to ensuring delivery deadlines. Report any deviation to accounts and quality assurance department. Responsible for storage of inventory as per the laid down guide lines of the quality assurance departments. Conducts periodic inventory so that the inventory records reflect the actual position.

Marketing Services Manager: Responsible for ensuring the implementation of corporate marketing strategies. Oversees the working of the marketing department and is the primary point of contact with external support agencies prov[id]ing advertising, promotion and ,marketing research services to the corporation. Coordinate with accounts department in maintaining check on the client out standings.

National Sales Manager (Retail Division): Responsible for achieving agreed sales targets for the retail division of the business. Supervises the team on [a] national basis and ensures stock availability at all the four regional offices. Lia[i]se with the marketing intermediaries to enlist their support to the marketing of the company product. Hires, trains and promote[ s] the team in the retail division. Organize sales function[ s] and events to serve the existing client base. Stay abreast with competitive moves in the market place. Recommend ways to increase penetration in the target market segments.

The statement indicated that the "General Manager reported directly to the owner of the company."

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In the NOIR dated May 10, 2010, the Director stated that the Petitioner had not adequately established that the Beneficiary had worked for the foreign entity in a managerial or executive capacity. The Petitioner's response included a June 7, 2010, letter from who stated that the Beneficiary "is the Managing Director of our company.". provided a brief description of the Beneficiary's duties in the United States, but provided no other information about the Beneficiary's previous position abroad.

In the second NOIR, issued September 11, 2014, the Director stated that the Petitioner had provided conflicting accounts of the foreign company's staffing. The statement submitted with the initial filing ofthe petition indicated that the company employed 150 workers; the organizational chart showed only 12 employees; and the Petitioner's RFE response identified managerial titles not shown on previous submissions. The Director also stated that the various descriptions of the Beneficiary's duties were vague and inconsistent.

A copy of an October 10, 2014, letter from chief executive of stated: "our company, is running smoothly with manpower of about 160 staff members which includes Manager, Clerks, Shift Incharges, Supervisors, Laborers and Security Staff." In another letter, bearing the same date, acknowledged the Beneficiary's prior employment but did not identify his title or specify his duties.

In an affidavit dated November 11, 2014, the Beneficiary estimated that the company had "approximately 40 employees ... on salary," and "anywhere from 90 to 120 day laborers." The Beneficiary stated that he "generally oversaw the three managers (Export, Import and Local sales)" but they did not report directly to him. The Beneficiary stated that he "managed the daily legal implications at the company, including situations when workers were injured or had conflicts at the work-site," and that he "also arbitrated disputes between management and laborers/workers."

In the revocation notice, the Director stated that the Beneficiary's "affidavit creates more discrepancies" without resolving the existing ones, and concluded that the Petitioner had not established that the Beneficiary had served abroad in a managerial or executive capacity.

The Petitioner, on appeal, does not address the Director's findings regarding the Beneficiary's duties with the foreign company.

2. Analysis

Upon review of the petition and the evidence of record, including materials submitted in support of the appeal, we conclude that the Petitioner has not established that the Beneficiary was employed abroad in a managerial or executive capacity.

As detailed above, the Director identified deficiencies and contradictions in the various descriptions of the foreign company's personnel structure and the Beneficiary's duties within that structure. Review of the record supports the Director's description of the Petitioner's evidence and the problems with that

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evidence. On appeal, the Petitioner has not contested or rebutted the Director's findings, and we will not disturb those findings here.

The Petitioner has not met its burden of proof to establish that the Beneficiary served in a managerial or executive capacity abroad. USCIS cannot properly approve the petition.

VII. CONCLUSION

We will dismiss the appeal for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought.26 Here, the petitioner has not met that burden.

We further find that the Petitioner knowingly submitted documents containing false statements in an effort to mislead USCIS on an element material to the Beneficiary's eligibility for a benefit sought under the immigration laws of the United States.27 We hereby affirm the Director's finding of willful misrepresentation of a material fact.

ORDER: The appeal is dismissed.

Cite as Matter ofS-1-,Inc., ID# 124702 (AAO Sept. 27, 2016)

26 Section 291 of the Act; Otiende, 26 I&N Dec. 128. 27 See 18 U.S.C. §§ 1001, 1546.

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