U.S. Citizenship and Immigration Services

MATTER OF B-Z-, INC.

APPEAL OF TEXAS SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JUNE 22,2017

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

The Petitioner, an operator of five gas stations and convenience stores, seeks to permanently employ the Beneficiary as its president 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 of the Texas Service Center denied the petition, concluding that the record did not establish, as required, that: (1) the Petitioner had overcome inconsistencies regarding the Beneficiary's employment abroad, which had previously led to a finding of willful misrepresentation of a material fact; and (2) the Beneficiary will be employed in the United States in a managerial or executive capacity.

On appeal, the Petitioner submits copies of previously submitted evidence and asserts that the Director erred by not accepting the Petitioner's evidence and explanation for apparent discrepancies in the record.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three years preceding the tiling of the petition, has been employed outside the United States for at least one year in a managerial or executive capacity, and seeks to enter the United States in order to continue to render managerial or executive services to the same employer or to its subsidiary or affiliate.

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. This classification does not require a labor certification.

The petition must include a statement from an authorized official of the petitioning United States employer which demonstrates that the beneficiary has been employed abroad in a managerial or executive capacity for at least one year in the three years preceding the tiling of the petition, that the

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Matter of B-Z-. Inc.

beneficiary is coming to work in the United States for the same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3).

II. PRIOR FINDING OF WILLFUL MISREPRESENTATION

The Petitioner had previously filed a Form I-140 petition on the Beneficiary' s behalf in 2010. The Petitioner withdrew that petition in 2014 after the Director issued a notice of intent to deny the petition (NOID), based on discrepancies in the Beneficiary's claimed employment history. The Director acknowledged the withdrawal of the petition, and entered a finding of willful misrepresentation of a material fact. See section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). The Petitioner later filed the present petition in 2015.

In the present case, the Director found that the Petitioner has not overcome those discrepancies, and that the prior finding of misrepresentation is still in effect. A prior finding of misrepresentation is not inherently disqualifying with respect to a newly filed petition, but because it relates to issues material to this petition, the finding remains relevant and we may consider the earlier petition here. See 8 C.F.R. § 103.2(b)(15). On appeal, the Petitioner states that it, and the Beneficiary, had inadvertently provided incomplete information and that a prior attorney had been negligent when preparing forms.

The Petitioner claims a qualifying relationship with in India and that the Beneficiary worked for this entity abroad for one year in the three years preceding his entry to the United States. The Beneficiary last entered the United States in June 2007 and began working for the Petitioner in January 2008.

In March 2007, the Beneficiary applied for a B-1/B-2 nonimmigrant visitor's visa at the U.S. Consulate in India. On his nonimmigrant visa application, he stated that he was currently employed as the proprietor of The Beneficiary identified no other employment.

Concurrently with both Form 1-140 petitions, the Beneficiary had filed Forms I-485, Applications to Register Permanent Residence or Adjust Status. Each of those applications, in turn, included Form G-325A, Biographic Information, signed by the Beneficiary. On those two forms, the Beneficiary listed the following employment histories:

2010 Filing (signed March 2010) 2015 Filing (signed December 2014)

Manager Managing Partner India

January 2004- April 2007 April 2002- June 2007

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President The petitioning entity November 2007 - Present

Partner

June 2007 - Present

President The petitioning entity Jan 2008- Present

The present (2015) petition included a copy of the Beneficiary's resume, which showed the same employment history as the 2014 Form G-325A, plus a notation that the Beneficiary was the sole proprietor of in 2007. 1

The petition also included letters, largely identical in content, from the Petitioner and from . attesting to the Beneficiary's employment for both businesses. The Beneficiary signed

both of these letters in his capacity as an official of both entities. The Beneficiary stated that he was "the Managing Partner [of from April 2002 to June 2007 on a continuous and full­time basis."

The Petitioner prepared the present petition in late 2014, several months after receiving the NOID regarding the prior petition. Therefore, the Petitioner was already on notice about the Beneficiary's statements on his 2007 nonimmigrant visa application. Nevertheless, the Petitioner did not discuss that information when it filed the petition in January 2015, apart from the reference to on the Beneficiary's resume.

In a new NOID, the Director observed the lack of verifiable evidence to resolve the discrepancy arising from the Beneficiary's 2007 statement identifying his employer as The Director also compared the information on the two Forms G-325A and found that "[t]he name of the employer is similar but not the same and the dates of employment are not consistent throughout."

In an affidavit submitted in response to the NOID, the Beneficiary stated that, when he completed the nonimmigrant visa application in 2007, his "English was not good enough" and he "did not understand that [he was] required to list all concurrent positions on the visa application." Concerning the discrepancies on the Forms G-325A, the Beneficiary stated that he was "the victim of an irresponsible attorney" who made careless errors when preparing the form in 20 I 0. The Beneficiary also noted that the information was correct in the letter that had accompanied that form. The foreign employment dates on the 2010 letter match those on the 2014 Form G-325A. The 2010 letter did not specify when the Beneficiary began working for the Petitioner in the United States.

1 We note that, by definition, a sole proprietorship is not the same as a private limited company. Unlike a sole proprietorship, a private limited company is a separate legal entity, distinct from its owner(s).

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.Matter of B-Z-, Inc.

The Director denied the petition, stating that the Petitioner did not submit any verifiable evidence, such as documentation from and a statement from the former attorney, to corroborate the Beneficiary's assertions. Therefore, the Director concluded that the Petitioner had not established the Beneficiary's qualifying employment abroad, nor had it overcome the finding of misrepresentation.

On appeal, the Petitioner repeats earlier assertions regarding the Beneficiary's misunderstanding of the visa application instructions and error by the Beneficiary's former counsel. Regarding the lack of corroboration for these assertions, the Petitioner states: "Even the former counsel does not commit her fault and careless [sic] in writing. It is clearly [sic] that the discrepancy is due to the former counsel's careless [sic]."

The Beneficiary's uncorroborated statements do not suffice to resolve the discrepancies. The Beneficiary signed both Forms G-325A, thereby attesting to their accuracy and taking responsibility for their contents. Innocent or otherwise, discrepancies in the Beneficiary's various statements about his own employment history demonstrate the limitations of those statements in terms of their weight as evidence, and the importance of independent corroboration. The Beneficiary's subsequent attempts to disown his own prior statements serve to emphasize this point.

The Petitioner implies that the prior attorney has refused to provide a written admission of error, but the Petitioner has not established that an attorney prepared the earlier Form G-325A. Such evidence could take the form, for instance, of a signed contract or agreement between the Beneficiary and the attorney, specifying that the attorney would prepare that form.

Likewise, the Petitioner has not provided sufficient documentation, such as payroll records or internal company documents, to establish the extent to which the Beneficiary worked for and

before his 2007 entry into the United States. A 2002 deed of partnership establishes that the Beneficiary owned 60% of but documentation of ownership is not evidence of active involvement in the company's management.

With regard to the Beneficiary's claim that his English skills were limited in 2007, we note that the submitted documentation relating to is in English, with no indication that it has been translated from another language.

The Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. !d. Therefore, we may take the finding of misrepresentation into account when considering the Petitioner's other claims and evidence.

In this proceeding, the Director has not entered a new finding of willful misrepresentation of a material fact, which we would need to review and adjudicate de novo. Rather, the Director concluded that the Petitioner has not overcome an earlier finding. We agree with the Director's

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conclusions in this regard. In the absence of a substantively documented rebuttal, the earlier finding of misrepresentation stands undisturbed.

III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The Director found that the Petitioner did not establish that: ( 1) the Beneficiary has been employed abroad in a managerial or executive capacity; and (2) the Petitioner will employ the Beneficiary in a managerial or executive capacity.

The Petitioner stated that the Beneficiary has worked "primarily in [an] executive capacity for the Foreign Affiliated Company" and "will primarily perform executive duties as president of the US Company." More specifically, the Petitioner stated that the Beneficiary's foreign duties were 70% executive and 30% managerial, and that his U.S. duties will be 60% executive and 40% managerial. The statute requires service in a primarily managerial or primarily executive capacity. See section 101(a)(44)(A) and (B) of the Act; 8 U.S.C. § llOl(A) and (B). The Petitioner stipulates that the Beneficiary's duties were not, and will not be, primarily managerial. Therefore, we will only consider the claim that the Beneficiary's duties have been and will be primarily those of an executive.

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

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. See section 101(a)(44)(C) ofthe Act.

A. U.S. Employment in an Executive Capacity

1. Employer-Employee Relationship

As a threshold issue, we find that the record does not establish that the Beneficiary is an employee and that the Petitioner and the Beneficiary will have an employer-employee relationship. Therefore, the Petitioner has not established that the Beneficiary meets the basic statutory criteria discussed at sections 101(a)(44) and 203(b)(l)(C) of the Act and, based on the current record, is not eligible for the immigrant classification sought.

We note that the four-prong executive capacity definition is highly relevant to the issue of the Petitioner's eligibility, which states that only foreign nationals who were "employed" abroad and are

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coming to the United States "to continue to render services to the same employer or to an affiliate or subsidiary thereof' will merit classification as a multinational manager or executive. Also, section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F), only permits an "employer desiring and intending to employ within the United States an alien" to file an immigrant petition seeking classification under section 203(b )(1 )(C) of the Act. This is in contrast to provisions in the Act, such as section 204( a)(l )(E) and (H), which permit a beneficiary to file an immigrant petition on behalf of himself or herself. 2

Further, the term "executive capacity," which has been codified and incorporated into the regulations at 8 C.F.R. § 204.5G)(2), specifically applies solely to "the employee" of the "United States employer" filing the petition on behalf of a beneficiary. See section 10l(a)(44)(B) of the Act; 8 C.F.R. § 204.5G)(l ), (2). If we determine that an employer-employee relationship does not exist between the Petitioner and the Beneficiary, this deficiency, by itself~ would serve as a sufficient basis for denying the petition.

Therefore, applying the above reasoning to the matter at hand, we must determine whether the Petitioner and the Beneficiary will have an employer-employee relationship. As indicated above, section 203(b )(1 )(C) requires the Beneficiary to have been "employed" abroad and to be coming to the United States for the purpose of rendering his services to the same or a related "employer" in the United States in a managerial or executive capacity.3 Section 101(a)(44), 8 U.S.C. § 1101(a)(44), defines both managerial and executive capacity as an assignment within an organization in which an "employee" performs certain enumerated qualifying duties. The Supreme Court has determined that where the applicable federal law does not define "employee," the term should be construed as

2 Of particular note, Congress enacted sections 203(b )(5) and 204(a)(l )(H) of the Act to permit a foreign entrepreneur "engaging in a new commercial enterprise" to immigrate to the United States provided certain requirements were met, including employment creation. 3 We note there is existing precedent case law, namely Matter of Allen Gee, Inc., 17 I&N Dec. 296 (Comm'r 1979), and Matter of Aphrodite, 17 I&N Dec. 530 (Reg'! Comm'r 1980), that is relevant to the issue discussed here in this matter. In Matter of Allen Gee, Inc., the Regional Commissioner determined that, as the petitioning corporation ''is a legal entity distinct from its sole stockholder,'' it may "petition for the beneficiary's services.'' Similarly, in Matter ofAphrodite, 17 I&N Dec. at 531, the Commissioner focused on the corporation's separate legal existence from that of its shareholder and pointed out that the term "employee" was not used in section I 0 I (a)(J 5)(L) of the Act, 8 U .S.C. § II 0 I (a)( 15)(L).

However, both decisions were issued prior to the Immigration Act of 1990 ("'MMACT90"), which codified the definitions for managerial and executive capacity. See Pub. L. No. I 01-649, § 123, I 04 Stat. 4978, § 123 (1990). It is critical to note that both definitions in the Act now incorporate the term "employee" in referring to the beneficiary as one who assumes an assignment with an organization in a managerial or executive capacity. !d.; section 10 I (a)(44) of the Act. Therefore, while the holdings in Matter of Allen Gee, Inc. and Matter of Aphrodite were in line with the statutory provisions that were in effect at the time those decisions were issued, the changes that resulted from the enactment of IMMACT 90 indicate that our current contemplation of the term "employee" within the scope of an employer-employee relationship between the Petitioner and the Beneficiary is inherent to determining whether the Petitioner meets the current eligibility criteria. That said, these prior precedent decisions remain instructive as to whether a petitioner may seek classification for a beneficiary who has a substantial ownership interest in the organization; they were only superseded by statute to the extent they held or implied that such a beneficiary need not be an ''employee'' of the petitioning organization to qualify as a multinational manager or executive.

Matter of B-Z-, Inc.

"intend[ing] to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 ( 1992) ("Darden'') (quoting Comty.for Creative Non-Violence v. Reid, 490 U.S. 730,739-40 (1989) ("C.C.N. V'')). The Court stated:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."

Darden, 503 U.S. at 323-324 (quoting C.C.N. V, 490 U.S. at 751-752); see also Clackamas Gastroenterology Assocs. P.C. v. Wells, 538 U.S. 440, 445, 447 & n.5 (2003). As the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. ofAm., 390 U.S. 254, 258 (1968)) (emphasis added).

In Clackamas, the Supreme Court articulated the following factors to be weighed in determining whether an individual with an ownership interest is an employee:

• Whether the organization can hire or fire the individual or set the rules and regulations ofthe individual's work.

• Whether and, if so, to what extent the organization supervises the individual's work.

• Whether the individual reports to someone higher in the organization. • Whether and, if so, to what extent the individual is able to influence the

organization. • Whether the parties intended that the individual be an employee, as expressed in

written agreements or contracts. • Whether the individual shares in the profits, losses, and liabilities of the

organization.

Clackamas, 538 U.S. at 449-450 (deferring to the factors enumerated in the Equal Employment Opportunity Commission's Compliance Manual § 605:0009 (EEOC 2000) (currently cited as § 2-III(A)(l)(d)) for determining "whether [a partner, officer, member of a board of directors, or major shareholder] acts independently and participates in managing the organization, or whether the

Matter of B-Z-, Inc.

individual is subject to the organization's control," and accordingly whether the individual qualifies as an employee).

As with the common-law factors listed in Darden, the factors relevant to the inquiry of whether a shareholder-director is an employee are likewise not exhaustive. Clackamas, 538 U.S. at 450 n.l 0 (citing Darden, 503 U.S. at 324). Not all of the listed criteria need be met; however, the fact finder must weigh its assessment of the combination of the factors in analyzing the facts of each individual case. The determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee relationship. See id. at 448-449.

As indicated above, it is critical to consider not only the factor of ownership, but also the factor of control when making this determination, as neither factor, by itself is sufficient to determine whether an employer-employee relationship exists between any given petitioner and beneficiary. In other words, the fact that a beneficiary owns the majority or all of a petitioning entity's shares does not automatically lead to the conclusion that the petitioner and the beneficiary do not have an employer­employee relationship.

Applying these factors of control under the common law of agency to the evidence presented in this matter, we find that the Petitioner has not established with the current evidence that it will be a "United States employer" having an employer-employee relationship with the Beneficiary as an "employee."

In this instance, the Beneficiary is the sole shareholder of the petitioning company, and the only member of its board of directors. The Petitioner has not identified any higher level of authority to which the Beneficiary is responsible. The Petitioner has acknowledged that the Beneficiary has total ownership and control of the petitioning company.

The Petitioner is a member of three limited liability companies. The Petitioner does not own any of these three companies outright, although it does hold at least a 50% interest in each. More significantly, none of these subsidiary entities is the petitioning U.S. entity. The Petitioner is the only U.S. entity that must show a direct employer-employee relationship with the Beneficiary; its partial ownership of subsidiary entities does not diminish the Beneficiary's control over the Petitioner itself.

Considering the above facts, we do not find that there is an employer-employee relationship between the Petitioner and the Beneficiary.

2. Duties

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

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When examining the executive or managerial capacity of a given beneficiary, we will look first to the petitioner's description of the job duties. The Petitioner's description of the job duties must clearly describe the duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or executive capacity. See 8 C.F.R. § 204.50)(5).

The Petitioner indicated that the Beneficiary will spend 60% of his time working in an executive capacity, with his time divided as follows:

1. DIRECTS THE MANAGEMENT OF THE ORGANIZATION OR MAJOR FUNCTION OF THE ORGANIZATION: (25%)

• Responsible for all financial, operational, administrative and legal aspects of the daily organizational management of the company, including finance, sales, marketing, inventory, purchasing and sound management of all fiscal resources, supervision of established staff members and operations in accordance with standard business practice;

• Direct managers in purchasing of inventory, sourcing of vendors and negotiating with vendors;

• Ensure legal compliance and program and fiscal accountability;

2. ESTABLISHES THE GOALS AND POLICIES OF THE ORGANIZATION, COMPONENT, OR FUNCTION: (15%)

• Develop the strategy of the company using performance measurement to guide strategic and operational decision-making;

• Implement strategic plans, and implement other board and agency plans in a timely way as they relate to the capital campaign, programs, annual fund development, communications and business development;

• Determine business expansion possibilities and ensure efficient and cost effective management of company based on quarterly financial audit and revtews;

• Develop and administer personnel policies;

3. EXERCISES WIDE LATITUDE IN DISCRETIONARY DECISION-MAKING: (15%)

• Give direction and leadership towards the achievement of the organization's proprietary philosophy, mission, strategy and annual goals, and objectives;

• Provide leadership in developing organizational and financial plan, and carry out plans and policies as authorized by the board;

• Assist the shareholder by maintaining and promoting the vision and mission ofthe company and in achieving goals and objectives ofthe strategic plan;

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4. RECEIVES ONLY GENERAL SUPERVISION OR DIRECTION FROM HIGHER LEVEL EXECUTIVES, THE BOARD OF DIRECTORS OR STOCKHOLDERS OF THE ORGANIZATION: (5%)

• Work with the shareholder to set investment and management policies consistent with his goal to expand global investment portfolio;

• Liaison with business brokers and investigate prospective investment deals for the company;

• Identify and cultivate partner organizations in arranging new business ventures, investment, sales, loans and vendor agreements, etc.;

• Keep the shareholder informed on the conditions of the company and other important factors affecting the health of the company's investment portfolio.

In the NOID, the Director noted that the above job description is different from the job description included in the earlier petition, filed in 2010. That job description included non-executive duties such as preparing financial documents and training employees. In response to the NOID, the Petitioner submitted copies of previously submitted materials and, in a new statement, essentially paraphrased the newer version of the job description. The Petitioner did not explain why the newer job description differed from the older one, when both purport to describe the same positions.

The Director denied the petition, finding that the Petitioner had not overcome the discrepancies noted in the NOID. On appeal, the Petitioner resubmits the job description letters and repeats the rephrased version from the NOID response brief. As noted above, the Petitioner states that the Beneficiary's former attorney is responsible for any discrepancies, but the Petitioner submits no verifiable, independent evidence to establish that its latest claims are more credible or reliable than those included in the earlier petition.

Setting aside the discrepancies listed in the NOID, the new job description is deficient on its face. It describes various general areas of responsibility, but provides minimal information about specific tasks that the Petitioner claims the Beneficiary performed. The Petitioner stated, for instance, that the Beneficiary will ensure compliance with legal and financial standards, but did not say what identifiable activities the Beneficiary will perform to achieve that goal. Also, the Beneficiary is the Petitioner's only shareholder, and therefore the references to assisting and working with "the shareholder" cannot apply to the Beneficiary's claimed U.S. duties.

Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fe din Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N. Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The actual duties themselves reveal the true nature of the employment. !d. Here, credibility issues aside, the Petitioner has not provided enough information to show that it will employ the Beneficiary in an executive capacity.

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3. Staffing

The Petitioner's organizational chart identifies the Beneficiary as president, plus an operations manager, an accountant, a two-member purchasing department, a cook, and two directly-owned stores, each with a manager and "multiple cashiers."4

The Petitioner's payroll records from November and December 2014, just before the filing date, show eight employees, six of whom are named on the Petitioner's organizational chart:

The Beneficiary Operations Manager Accountant Store Manager Store Manager Cook Unspecified Unspecified

$6,000/month $700/week

$3,000/month $1 ,000/month

$400/week $130/week

$1 ,000/month $200/week

Four of the eight positions are below minimum wage for full-time employment, and therefore, the record does not show that the Petitioner's stores are consistently staffed. Furthermore, the Beneficiary received three IRS Forms W-2, Wage and Tax Statements for 2015. The Petitioner paid the Beneficiary $72,000 that year. Two of the Petitioner's three U.S. affiliates each paid him $12,000 that same year. The companies reported these payments as salaries, rather than distributions resulting from the Beneficiary's ownership interest in the companies. The separate salaries indicate that the Beneficiary worked at each store, and the low salaries are not readily consistent with executive-level compensation. The Beneficiary has not shown that the stores were sutliciently staffed that they did not need him as a front-line employee (for example, as a cashier).

B. Foreign Employment in an Executive Capacity

Because the Beneficiary is already working for the Petitioner in the United States, the Petitioner must establish that the Beneficiary served in an executive capacity abroad before his entry as a nonimmigrant. See 8 C.F.R. § 204.5(j)(3)(i)(B).

The Petitioner's letters, signed by the Beneficiary, include the same job descriptions for the Beneficiary's claimed past work abroad and his intended work in the United States, except for the percentage of time dedicated to one class of tasks. The Petitioner stated that the Beneficiary previously devoted 25% of his time, rather than 15%, to establishing the goals and policies of the foreign organization, component, or function. Because the two job descriptions are otherwise identical, the above discussion applies here as well.

4 Three stores are operated by the Petitioner's affiliates and therefore their employees are not on the Petitioner's payroll.

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An organizational chart indicates that the Beneficiary oversaw an operations manager and a quality assurance manager, each with responsibility over two departments. The Petitioner indicated that the operations manager oversaw a bookkeeper, an outsourced accounting firm, and outsourced vendors, while the quality assurance manager's subordinates included a chief baker, assistant baker, front manager, and four servers. The Petitioner submitted evidence to establish the existence of the foreign company and the Beneficiary's ownership of part of that company, but not to substantiate the details regarding the staffing and the Beneficiary's claimed authority over the company.

In the NOID, the Director asked for "independent documentary evidence" of the Beneficiary's employment abroad in an executive capacity. The Petitioner's response did not include the requested documentation. Instead, the Petitioner submitted a copy of the employment letter included with the petition (signed by the Beneficiary, and therefore not independent) and a copy of the organizational chart, with no corroborating evidence to establish the chart's accuracy.

The Director denied the petition, stating that the Petitioner had not corroborated its claims regarding the Beneficiary's employment abroad. On appeal, the Petitioner again submits copies of prior submissions and asserts that it has already met its burden of proof. Because the Petitioner has not overcome the Director's prior finding of willful misrepresentation of material facts relating to the Beneficiary's claimed employment abroad, the Petitioner's unsubstantiated assertions cannot meet the Petitioner's burden of proof with respect to that employment.

IV. CONCLUSION

The Petitioner has not overcome the prior finding of willful misrepresentation of a material fact. Also, the Petitioner has not established that the Beneficiary has been, and will be, employed in an executive capacity.

ORDER: The appeal is dismissed.

Cite as Matter of B-Z-, Inc., ID# 389766 (AAO June 22, 2017)

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