This appeal was not successful at this stage
The AAO denied the motion to reconsider and granted the motion to reopen only in part. The petition denial was left undisturbed because the Petitioner conceded ineligibility, but the Director's willful misrepresentation finding was withdrawn due to insufficient evidence.
The Petitioner, a U.S. pizzeria, sought to permanently employ a foreign national as its executive manager under the EB-1C multinational executive/manager classification. The Director denied the petition on multiple grounds, including failure to establish a qualifying organizational relationship and willful misrepresentation of company ownership. The AAO had previously summarily dismissed the appeal because the Petitioner's brief was mailed to the wrong address (the Texas Service Center instead of the AAO). On motion, the Petitioner conceded its ineligibility for the visa benefit but challenged only the willful misrepresentation finding. The AAO found that inconsistencies between state corporate filings and federal tax returns did not clearly support an intentional misrepresentation, and withdrew that finding while leaving the petition denial intact. This case highlights the importance of correctly filing appellate briefs and the high standard for willful misrepresentation determinations.
What worked: The Petitioner successfully challenged the Director's willful misrepresentation finding by presenting an accountant's affidavit explaining the corporate restructuring was done for tax purposes, and state corporate filings showing continued co-ownership by M.D., creating sufficient ambiguity to defeat a finding of intentional fraud.
What failed: The Petitioner failed to establish eligibility for the EB-1C classification, conceding it could not show a qualifying multinational relationship, proper managerial/executive capacity abroad or in the U.S., or that the foreign entity was doing business. Procedurally, the appellate brief was mailed to the wrong address, causing the appeal to be summarily dismissed.
Takeaway: Always submit appellate briefs directly to the AAO as required by the Form I-290B instructions — sending materials to a service center will not satisfy this requirement and may result in summary dismissal. Petitioners should also maintain consistent corporate documentation (state filings, federal tax returns, share certificates) to avoid misrepresentation findings when ownership structures change.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1C criteria.
● Evidence that moved the needle
- The Petitioner successfully challenged the Director's willful misrepresentation finding by presenting an accountant's affidavit explaining the corporate restructuring was done for tax purposes, and state corporate filings showing continued co-ownership by M.D., creating sufficient ambiguity to defeat a finding of intentional fraud.
● Evidence that wasn't enough alone
- The Petitioner failed to establish eligibility for the EB-1C classification, conceding it could not show a qualifying multinational relationship, proper managerial/executive capacity abroad or in the U.S., or that the foreign entity was doing business
- Procedurally, the appellate brief was mailed to the wrong address, causing the appeal to be summarily dismissed.
State of Florida corporate filings continuing to identify M.D. as a director as of 2014, consistent with shared ownership claims
Accountant affidavit explaining that the corporate structure change from C to S corporation was for tax purposes, not immigration benefit
Share certificates from 2003 showing M.D. and the Beneficiary each held 500 shares, suggesting affiliate rather than subsidiary relationship
Appellate brief submitted to the Texas Service Center instead of directly to the AAO, causing it to not be timely considered
IRS Form 1120S tax returns identifying Beneficiary as sole shareholder were not found to be more reliable than state corporate filings
Petitioner's claim of qualifying relationship as a subsidiary of the foreign employer was not established — the foreign employer appeared to be a sole proprietorship rather than a separate legal entity
The Director found willful misrepresentation of material fact regarding company ownership, but the AAO found the evidence was insufficient to support that finding given inconsistent corporate and tax records.
Completed
I-140 filed
Executive manager of a pizzeria
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2019-02-15
AAO decision — Dismissed
The AAO denied the motion to reconsider and granted the motion to reopen only in part. The petition denial was left undisturbed because the Petitioner conceded ineligibility, but the Director's willful misrepresentation finding was withdrawn due to insufficient evidence.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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