I-485 Material misrepresentation

D

doubleds

Registered Users (C)
I had my I-485 Marriage based green card interview I was able to answer all question they asked, but they brought up an issue, before choosing the Marriage based green card, my current employer applied for a green card and my I-140 was denied.
The reason given for denial was that when my employer filed for my labor certification, in labor certification section “C. Employer Information” there is a question “9. Is the employer a closely held corporation, partnership, or sole proprietorship in which alien has an ownership interest, or it there a familial relationship between the owners, stockholder, partners, corporate officer, incorporated, and the alien?” my company answered the question “No”, I-140 denied because DOL was not give the opportunity to properly audit the company.
About the company: the company is a LLC company and, after joining the firm I was given nonvoting shares as a bonus for my performance, since I do not have any vote in the company and do not get involved in the company decision making company decided to answer the question “No”. But according to USCIS company should have answered “Yes” and DOL should have given the chance to audit the firm’s job offering. In the denial letter they have quoted “Material misrepresentation”.

In my I-485 interview my interview office said I have answered “No” to following question and she is not sure if I can answer “No” to this question. Because my I-140 was denied due to “Material misrepresentation” in my Labor certification and I have signed the labor certification.
Part 3 of the form has Question 9:
Are you under final order of civil penalty for violating section 274C of the immigration and Nationality act for use of fraudulent documents or have you, by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa other documentation, entry into the Unites States, or any immigration benefit?

I am concerned that they are going to send a denial letter for my I-485,
What are my options here?
 
Did you not know that you are not suppose to have ownership interest in company which is sponsoring you for labor certification ? You might have to come up with evidence to counter USCIS's allegation of material misrepresentation. You try to convince saying these were nonvoting shares as a bonus to joining the company and should not be construed as having material ownership interest. Otherwise convert these bonus shares to cash include as income in W2 and show to USCIS.
 
No I was not aware that I should not hold shares, the company people who applied for Labor certification thought that the shares I had was not voting, I never contributed money for the company capital that I am not an owner of the company.

Converting the shares to cash now how will that show that there was no misrepresentation?

Thanks
 
Converting shares to cash at this point will serve no purpose.

Your goal now is to show that your ownership stake was so trivial that it wasn't material to the case. What % were your shares worth?

And get an immigration lawyer ASAP.
 
The shares that I was giving would be 0.74% of the company owner ship,

These shares do not provide voting rights
They do not provide any distribution
They cannot be sold now
Are fully forfeitable if I leave the company
These shares do not holder to take losses in my taxes or record gains

Any suggestion for good layers? Currently I have a firm doing my case, will like to know if you guys have any suggestion?
 
doubleds said:
The shares that I was giving would be 0.74% of the company owner ship,

These shares do not provide voting rights
They do not provide any distribution
They cannot be sold now
Are fully forfeitable if I leave the company
These shares do not holder to take losses in my taxes or record gains
Click to expand...

Follow up with USCIS with a lawyer letter explaining these facts you mentioned here, along with documents to prove those facts.
 
I was under the same impression, Looking at the Labor certification it appears that I have signed saying section J and K are true, but according to USCIS section C question 9 was answered wrong, and they consider that a "Material willful misrepresentation".

They send an Intend to Deny letter for the I-140 and my company sent a letter back with following reason why they choose to answer "No" Section C question 9 of the LC.

"These shares do not provide voting rights
They do not provide any distribution
They cannot be sold now
Are fully forfeitable if I leave the company
These shares do not holder to take losses in my taxes or record gains"

But they send a denial notice for I-140 with the claim it was a "Material willful misrepresentation" in the LC and the department of labor was not given the chance to look at these documents before approving the LC there for this was a ""Material willful misrepresentation" and they are saying as a beneficiary of the LC and since I have signed the LC also I have also done "Material willful misrepresentation"
 
doubleds said:
I was under the same impression, Looking at the Labor certification it appears that I have signed saying section J and K are true, but according to USCIS section C question 9 was answered wrong, and they consider that a "Material willful misrepresentation".

They send an Intend to Deny letter for the I-140 and my company sent a letter back with following reason why they choose to answer "No" Section C question 9 of the LC.

"These shares do not provide voting rights
They do not provide any distribution
They cannot be sold now
Are fully forfeitable if I leave the company
These shares do not holder to take losses in my taxes or record gains"
Click to expand...

So it didn't state that the shares were worth only 0.74%? Your response should mention that.
 
yes in the letter that my company CEO sent to Intend to Deny response they have mentioned that the I was given 15 units representing 1.5% of which only 0.74% is vested, they even told them that no actual stock certificate has been issued since profit units are subject to forfeiture.
 
In the I-140 denial letter that was sent to the company they have mentioned that

In one para they have this

Answer to section c question 9 should be "Yes", but the filed LC has answer as "No, there for "The beneficiary, the petitioner's representative, and counsel all signed the labor certification under penalty of perjury"

In another para they have

"By failing to identify the partnership relationship between the petitioner and the beneficiary, the petitioner and the beneficiary seek to procure a benefit provided under the act through willful misrepresentation of material fact."

Yes they have mentioned the word willful at few time
 
You could still appeal your I-140 denial, because your misrepresentation was not willfully made. Provided you still have time before deadline.
Of course, you will have to mention this denial on I-485 and provide explanation, that it was not really willful.

9 FAM is not USCIS document, but the explanations are similar.

http://www.state.gov/documents/organization/87011.pdf



9 FAM 40.63 N5.1 “Willfully" Defined
(TL:VISA-175; 01-15-1998)
The term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to mean
knowingly and intentionally, as distinguished from accidentally, inadvertently, or in
an honest belief that the facts are otherwise. In order to find the element of
willfulness, it must be determined that the alien was fully aware of the nature of
the information sought and knowingly, intentionally, and deliberately made an
untrue statement.
Click to expand...
 
If I were you I would state it is not willful, you made it inadvertantly, because your share is tiny you did not consider it as real ownership, you just did not pay your full attention to the formal definition of the question. According to the definition above (look for USCIS definitions too) it means it is not willfull and will not prevent you from getting your status adjusted, provided you state this story on your I-485.
 
Your ownership stake was trivial and didn't have voting rights, and you signed the LC based on your company's advice. Challenge the finding of willfulness.
 
you signed the LC based on your company's advice
Click to expand...
I would not mention that you acted on the company's advice.

9 FAM 40.63 N5.2 Misrepresentation is Alien's
Responsibility
(TL:VISA-4; 11-19-1987)
An alien who acts on the advice of another is considered to be exercising the
faculty of conscious and deliberate will in accepting or rejecting such advice. It is
no defense for an alien to say that the misrepresentation was made because
someone else advised the action unless it is found that the alien lacked the
capacity to exercise judgment.
Click to expand...
 
The time to appeal the I-140 should have passed now, because I got a copy of the denial letter from the company now, the denial was sent to the company in September of 2012, I was told the case is denied and there is nothing much to do about then I started the marriage based process. I was not aware that they have accused me of "Material willful misrepresentation" in that letter, so it was not mentioned in my I-485 filing because USCIS never sent me any document about the I-140 denial and I was not aware of it, the first time I heard was at my I-485 interview the officer asked if I did any thing like this, I said I did not do anything and it was my company who was filling.
 
So, what exactly documents did you sign that mentioned you had no ownership in the company? Or was there any? Was it only your employer who signed the documents?
 
When the Intent to Deny letter for my I-140 was sent, it was sent to my employer not to be, they answered that Intend to Deny letter with a response showing why the opted to answer "No" for the ownership question in LC. I was not involved in the Intent to Deny response letter.
 
No I have not signed any document to USCIS saying that I have no ownership in the company, the only document I signed in the entire company based green card is the LC.
 
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