dismissed EB-1C Case: Wholesale Diamond Sales

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
prevent clearly unw~rrmted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
PUBLIC Cur X 
FILE: Office: NEBRASKA SERVICE CENTER Date: MI? 2 7 2D09 
LIN 07 055 50701 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
J@. Grissom 
Actlng Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 11 53(b)(l)(C). The petitioner, an Arizona limited liability company, is a wholesale diamond merchant. It 
seeks to employ the beneficiary as its regional sales manager. 
The director denied the petition based on two independent grounds, concluding that the petitioner failed to 
establish: (1) that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity; and (2) that the petitioner and the beneficiary's prior foreign employer have a qualifying 
relationship. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, the petitioner asserts that the beneficiary performs primarily 
managerial duties and suggests that the director failed to understand the nature of the offered position. The 
petitioner further attempts to clarify the ownership of the foreign and U.S. entities and states that both 
companies are owned by members of the same immediate family and therefore have the requisite qualifying 
relationship. The petitioner submits a brief and documentary evidence in support of the appeal. 
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 who 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. 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue addressed by the director is whether the petitioner established that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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) of the Act, 8 U.S.C. 5 1 101(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. 
The immigrant visa petition was filed on January 3, 2007. The petitioner indicated on Form 1-140 that it is a 
wholesale diamond merchant with four employees. In a letter dated November 15, 2006, the petitioner 
described the beneficiary's qualifications and proposed duties as regional sales manager as follows: 
Page 4 
[The beneficiary] is an accredited gemologist, diamonds expert and Southwest Sales Manager 
for [the petitioner's group] in Scottsdale, Arizona. Specifically, [the beneficiary] manages our 
wholesale jewelry design, crafting and sales operation in Denver, Colorado and Scottsdale, 
Arizona, and is personally in charge of our largest customer (a major jewelry manufacturer 
based in Denver and Scottsdale) and of more than 40 other customers that generate $3 million 
in sales. 
The petitioner further stated that the beneficiary is in charge of developing the company's Southwestern 
markets, supporting the company's existing retail clients, and providing guidance and assistance to the 
company's independent sales representatives in the area. 
The director issued a request for additional evidence on August 14, 2007, in which he requested, inter alia, 
additional evidence to establish that the beneficiary would be employed in the United States in a primarily 
managerial or executive capacity. The director requested a statement from the petitioner describing the 
beneficiary's proposed employment, including information regarding specific job duties, types of employees 
supervised, the beneficiary's level of authority, and the level of authority of the beneficiary's immediate 
supervisor. The director also requested an organizational chart for the U.S. company. 
In response, the foreign entity's vice president,, submitted a letter dated September 16, 2007. 
However, the letter did not include any additional information regarding the beneficiary's proposed role as the 
petitioner's regional sales manager. Rather, reiterated the statements made in the petitioner's letter 
dated November 15,2006. 
The petitioner submitted an employee list for the U.S. company which identifies a company president, the 
beneficiary's position of regional sales manager, a second regional sales manager, and an office manager. 
The director denied the petition on March 28, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. In denying 
the petition, the director observed that the beneficiary is engaged in sales duties and account management 
related to sales, and that such duties are not performed in a managerial or executive capacity. The director 
acknowledged the petitioner's statement that the beneficiary supervises sales representatives, but emphasized 
that no evidence was submitted to corroborate this claim. 
On appeal, the petitioner asserts that "there can be no question that a sales manager performs in a managerial 
capacity by managing an essential function of an organization." The petitioner re-iterates the position 
description included in its letter dated November 15,2006, asserting that the language "clearly shows that [the 
beneficiary] did much more than simply manage his own customers' accounts. The petitioner asserts that the 
position description is consistent with the description of a "sales manager" position as found at the U.S. 
Department of Labor's O*Net Online Occupational Information Network, and is therefore clearly managerial 
in nature. 
The petitioner further asserts that its sales representatives were not listed on the petitioner's organizational 
chart because they are independent contractors, rather than direct employees. The petitioner identifies three 
independent sales representatives by name and asserts that the beneficiary has been responsible for directing 
and assisting them. 
Page 5 
Upon review, the petitioner has not established that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5(j)(5). 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 
either in an executive or managerial capacity. Id. In addition, the definitions of executive and managerial 
capacity each have two separate parts. First, the petitioner must show that the beneficiary performs the high- 
level responsibilities that are specified in the definitions. Second, the petitioner must show that the beneficiary 
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to- 
day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 
1991). 
The petitioner's brief description of the beneficiary's duties offers little insight into what he does on a day-to- 
day basis. The petitioner stated that the beneficiary manages its "wholesale jewelry design, crafting and sales 
operation" in Scottsdale and Denver, but did not indicate the specific tasks the beneficiary performs. The 
petitioner has not established that it employs jewelry design or crafting employees, or sales employees, other 
than the beneficiary and one other regional sales manager. Therefore, it is reasonable to question to what 
extent the beneficiary performs managerial duties associated with these functions, or whether he is directly 
involved in performing product design, sales and marketing activities. 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. Fedin Bros. Co., Ltd v. Sava, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner further states that the beneficiary is "in charge of' the company's largest customer and 40 other 
customers, in charge of developing Southwestern markets, and responsible for supporting the company's retail 
clients. The petitioner has outlined the beneficiary's general areas of responsibility but has failed to indicate 
what specific duties he performs to "develop" markets or "support" retail customers, such that they could be 
classified as managerial or executive in nature. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
Based on the initial position description, the director reasonably requested clarification regarding the 
beneficiary's actual job duties, his level of authority, and the employees, if any, who work under his 
supervision. As noted above, the petitioner failed to provide any additional information regarding the 
beneficiary's job duties in response to the director's specific request. The failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. 5 103.2(b)(14). 
Absent a clear and detailed position description, the AAO cannot discern the beneficiary's actual duties and 
cannot conclude that he will be employed in a primarily managerial or executive capacity. The AAO will not 
accept a vague position description and speculate as to what the beneficiary does on a day-to-day basis. 
On appeal, rather than clarifying the beneficiary's actual duties within the context of the petitioner's specific 
business operations, the petitioner states that the duties are similar to those of a "sales manager" as that 
Page 6 
position is described by the U.S. Department of Labor's O*Net Online occupational database. The petitioner 
cannot rely on generic occupational classifications in lieu of providing a description of the beneficiary's actual 
duties. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. 
On appeal, the petitioner asserts that the beneficiary will manage an essential function of the U.S. company. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. 5 204.5(j)(5). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology Int '1, 19 I&N Dec. 593, 604 (Comm. 1988). 
As discussed, the petitioner has not clearly described or documented the beneficiary's duties, the scope of the 
beneficiary's authority, or his indirect supervision of other employees who relieve him from performing the 
non-qualifying duties associated with the claimed "essential function." Based on the minimal evidence in the 
record, it cannot be determined that the beneficiary would be primarily managing an essential function of the 
petitioning company, rather than personally performing the petitioner's sales and marketing function in the 
southwest United States. 
The AAO acknowledges the petitioner's claim on appeal that it did not include independent sales 
representatives on its organizational chart because the sales representatives are independent contractors. 
While the petitioner has now named three representatives, the petitioner has not presented evidence to 
document the existence of these employees nor identified the type and scope of services these individuals 
provide. Additionally, the petitioner has not explained how the services of the contracted employees obviate 
the need for the beneficiary to personally conduct the petitioner's sales function with respect to the 40 or more 
Page 7 
customer accounts stated to be under his responsibility. 
 Without documentary evidence to support its 
statements, the petitioner does not meet its burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. at 165. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established that the U.S. company has a 
qualifying relationship with the beneficiary's last foreign employer. To establish a "qualifying relationship" 
under the Act and the regulations, the 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." See generally 8 203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C); see also 
8 C.F.R. 5 204.56)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. 4 204.56)(2) states in pertinent part: 
Afiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 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. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidiary means 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. 
The petitioner indicated in its letter dated November 15, 2006 that it is a subsidiary of- 
, a Maryland corporation, which in turn is the U.S. headquarters of - 
an Israeli company. The petitioner described the corporate relationship as 
follows: 
are owned by and 
his sons, 
 is President of - 
is the majority member of [the,petitioning company], which serves as the 
regional office for -s Southwestern United States operations. 
Page 8 
In support of the petition, the petitioner submitted the following documentary evidence of the ownership of 
the three companies: 
A letter dated May 3, 2005 from ., stating that - 
I., located in Israel, is owned by - and 
- 
The Maryland Articles of Incorporation for 
 indicating that the company 
is authorized to issue 50,000 shares with $1 .OO par value per share. 
A letter dated September 27, 2005 from - accountants, indicating 
that owns 33"' percent of the issued shares o- 
m 
 The Arizona Articles of Organization for the petitioning company identifying m 
and 
 as the petitioner's members as of the date of organization on 
December 2 1,2004. 
An agreement dated February 1, 2005 between 
 and under 
which agreed to transfer his share in the petitioning company to = 
ffective immediately. 
A letter dated September 19, 2006 from, accountants, indicating 
that owns 5 1 percent of the petitioning company and 
 owns 
the remaining 49 percent. 
2005 Form 1120, U.S. Corporation Income Tax Return, which indicates 
that and 
 each own 50 percent of the company's stock. 
The petitioner's 2005 Form 1120, U.S. Corporation Income Tax Return, which 
identifies 
 as its 51 percent owner-and as the petitioner's 49 
percent owner. 
In the request for evidence issued on August 14, 2007, the director requested additional evidence to establish 
the qualifying corporate relationship between the petitioner and the foreign entity. The director advised that 
such evidence may include, but is not limited to, annual reports, articles of incorporation, financial statements 
and/or evidence of ownership of all outstanding stock for both entities. 
In response, the petitioner submitted the following additional evidence: 
Minutes of Organization Meeting of Board of Directors for 
 dated 
Januarv 5. 1999. which indicates that 500 shares were issued to each of the following 
- -~--- - 
 ,-z- > 
 -~-- ~--- - 
 -- ----- -- ~--- ---~- 
 U 
individuals:, and- 
stock certificates numbers three, four and five, indicating the issuance 
of 500 shares each to and - 
- stock transfer ledger, which indicates that stock certificates one and two 
were canceled, and indicates the issuance of 500 shares each to the three above- 
referenced individuals. 
A letter dated March 5, 2007 from 
 of the accounting firm m 
indicating that 
 is owned, one-third each, by 
- and -1 
 - 
Page 9 
The director denied the petition, concluding that the petitioner failed to establish that the U.S. company and 
the foreign entity have a qualifying relationship. In denying the petition, the director noted that the record 
contains conflicting information re ardin the ownership of the petitioner's U.S. parent company, - 
. The director observed that a tax return indicates that the company is owned by Alon and 
while the company's stock certificates indicate that the company is owned byand 
The director further observed that the foreign entity, based on the evidence submitted, is 
owned by a different group of individuals, 
 and, and therefore the foreign entity 
does not appear to have the claimed qualifying relationship with the petitioner. Citing to Matter of Ho, 19 
I&N Dec. 582 (Comm. 1998) the director emphasized that it is incumbent upon the petitioning company to 
resolve any inconsistencies in the record by independent and objective evidence. 
On appeal. the petitioner submits a letter dated Februarv 19,2006 from the foreign entitv's accountant, Rubin, 
- 
. which describes the ownership of as follows: 
The petitioner also submits two 
 , the accountant for. One letter, 
dated April 28, 2008, indicates that 
 each by and - 
The other letter, dated October 25,2007, indicates that 
 andeach own one-third om 
m 
In its statement submitted on appeal, the petitioner states that 
 and 
 each own 50 percent of 
The petitioner explains as follows: 
is the brother of and the son of 
Originally, the stock of the company was owned in equal 33.33% shares by 
as indicated in earlier correspondence. Several years ago, 
planning purposes, transferred his interest in equal parts to his two sons. 
Petitioner believes that under the circumstances there are the requisite company 
interrelationships. The same immediate family members own all of the ownership of 
Israel and I. - 
The petitioner's assertions are not persuasive. The petitioner has not established that the petitioner and the 
beneficiary's foreign employer have a qualifying relationship. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the 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. Matter 
of Church Scientology International, 1 9 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, USCIS is unable to determine the elements of ownership and control. 
Here, the petitioner indicates that it is majority-owned by another U.S. company, m which in turn 
is ultimately owned by two individuals, and . The petitioner has not adequately resolved 
the discrepancy between stock certificates indicating that the company is owned by three 
individuals, nor offered an explanation as to why no changes in ownership were reflected in the company's 
corporate records when allegedly transferred his share in to his sons. Moreover, 
although the petitioner claims that the change took place "several years ago," the evidence submitted on 
appeal contains a letter from accountant dated 2007 which indicates that the company is 
owned by three individuals. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to 
a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id. at 59 1. 
Nevertheless, assuming that the petitioner's U.S. parent company is owned in equal portions by 
 and 
, then it can only establish a qualifying affiliate relationship with the Israeli company if that 
company is also owned by the same individuals in the same proportions. The petitioner concedes on appeal 
that the foreign entity is majority owned by . has no ownership interest in 
and owns only a 0.05% interest in Therefore the extent of common 
ownership and control between the petitioner and the foreign entity is less than one percent. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this case the U.S. entity is owned by one individual and one company, and the foreign entity is owned by 
three individuals. Absent documentary evidence such as voting proxies or agreements to vote in concert so as 
to establish a controlling interest, the petitioner has not established that the same legal entity or individuals 
control both entities. Thus, the companies are not affiliates as both companies are not owned and controlled 
by the same individuals. Although counsel claims that the petitioning company and the overseas company are 
all owned by members of the same immediate family, this familial relationship does not constitute a 
qualifying relationship under the regulations. 
Based on the evidence submitted, it is concluded that the petitioner has not established that a qualifying 
relationship exists between the U.S. and foreign organizations. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the remaining issue in this proceeding is whether the petitioner 
established that the beneficiary was employed by the foreign entity in a managerial or executive capacity for 
at least one year within the three years preceding his entry to the United States as a nonimmigrant. See 8 
C.F.R. tj 204.5(j)(3)(i)(B). 
In its letter dated November 15, 2006, the petitioner stated that the beneficiary joined the foreign entity in 
January 1997. The petitioner described his duties as follows: 
[The beneficiary] was hired into our management-training program. For 14 months, [the 
beneficiary] worked out of our Israeli international headquarters and was groomed for a 
management position in the United States. Besides making several trips to the United States 
on a Bl/B2 visa to assist our regional sales management team, he received training in the 
grading, cutting and pricing of polished diamonds. During this period, he also completed his 
formal education in gemology and diamond grading studies at the Institute for Diamond 
Studies in Tel Aviv, Israel. 
The petitioner stated that the beneficiary was transferred to the United States in 1998 and has worked for the 
petitioner and its U.S. parent company since that time, in E-1 nonimmigrant status. 
The record of proceeding also contains a copy of the beneficiary's resume, in which he indicates that he was 
employed by the foreign entity from 1997-1998, performing the following duties: 
Six months of training in grading, cutting and pricing of polished diamonds. 14 months as a 
full-time member in the company's marketing department. Trained at the U.S. subsidiary, 
, as a regional sales and professional support manager. 
In the request for evidence issued on August 14, 2007, the director requested additional evidence to establish 
that the beneficiary was employed by the foreign entity in a primarily managerial or executive capacity for at 
least one year within the three years prior to his transfer to the United States. The director instructed the 
petitioner to submit a statement identifying the beneficiary's dates of employment with the foreign entity, job 
titles held, specific job duties, types of employees supervised, if any, level of authority and title and level of 
authority of the beneficiary's immediate supervisor. The director also requested an organizational chart for 
the foreign entity depicting the beneficiary's last position abroad. 
In a letter dated September 16, 2007, the foreign entity's vice president states that the beneficiary was hired 
into the company's management training program in Israel on January 10, 1997. The beneficiary's duties were 
described as follows: 
[The beneficiary] was put in charge of our import-export department of polished diamonds 
for both our Israeli international headquarters in Ramat Gan and our U.S. headquarters in 
Rockville, Maryland. 
As a manager, his duties were organizing purchase orders for the rough diamonds being 
imported; sorting them by size and quality; and instructing the diamond cutters daily 
according to the very specific needs of our U.S. subsidiaries and affiliates. [The beneficiary] 
oversaw the department's office staff in daily administration including preparation of 
invoices, bank deposits, collection calls on all customers, accounting, and all sales reports, as 
well as being in charge of confirming all shipments. 
At the same time, he was receiving his training in the grading, cutting and pricing of polished 
diamonds and completed his formal education in gemology and diamond grading studies at 
the Institute for Diamond Studies in Tel Aviv, Israel. 
[The beneficiary] was also responsible for interviewing potential diamond and jewelry sales 
representatives for our U.S. subsidiaries and affiliates, hiring them, and training them before 
they were transferred to the U.S. 
The foreign entity's letter indicates that the beneficiary transferred to the United States operations on March 
18, 1998. The petitioner provided an organizational chart for the foreign entity depicting a president, a vice 
president, an office manager, two sales managers, two salesman, two secretaries, and a certified public 
accountant. In a letter dated September 21, 2007, counsel explained that the beneficiary held a position 
"comparable to that of an office manager," and supervised the employees who currently hold the positions of 
sales manager and salesman with the foreign entity. 
Upon review, the petitioner has failed to submit a consistent and credible description of the beneficiary's 
employment with the foreign entity. The beneficiary's resume indicates that he spent 14 months as a 
"member" of the marketing department, during which time he completed six months of training in grading, 
cutting and pricing diamonds, and made several trips to the United States for additional training. The 
petitioner's initial description of the beneficiary's 14 months of employment with the foreign entity was 
similar in content and suggested that he was primarily undergoing training during his tenure with the foreign 
entity. Completion of a management training program is not equivalent to employment in a managerial or 
executive capacity as those terms are defined at section 101(a)(44) of the Act. There was nothing in the 
petitioner's initial evidence to suggest that the beneficiary's period of employment with the foreign entity 
involved primarily managerial or executive duties, any type of personnel supervision, or management of an 
essential function of the foreign entity. Rather, it appears that the beneficiary spent the 14 months of 
employment learning the diamond trade, including technical and sales aspects of the business. 
In response to the WE, the petitioner identified the beneficiary's title simply as "manager" or "comparable to 
that of an office manager," and stated that he supervised management-level employees, oversaw an "import- 
export department" not identified on the organizational chart, and interviewed and hired sales staff. The 
petitioner also claimed that the beneficiary supervised "office staff' and provided instruction to diamond 
cutters, all while completing training in how to cut diamonds himself. Given the significant differences 
between the initial position description and the description submitted in response to the RFE, the AAO does 
not find the description in the foreign entity's letter of September 16, 2007 to be credible. A petitioner may 
not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
If USCIS fails to believe that a fact stated in the petition is true, USCIS may reject that fact. Section 204(b) 
of the Act, 8 U.S.C. 9 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann 
Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). The record indicates that the beneficiary was hired by the foreign entity immediately after 
completing his service in the Israeli Defense Force, and that he had no prior experience in the diamond 
industry at the time he was hired. The petitioner's claim that the beneficiary was hired in a managerial 
capacity, after initially claiming that he was hired as a management trainee, is not persuasive. Accordingly, 
the petitioner has not established that the beneficiary was employed by the foreign entity in a primarily 
managerial or executive capacity prior to his transfer to the United States as an E-1 nonimmigrant in March 
1998. For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. The 
AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal from or 
review of the initial decision, the agency has all the powers which it would have in making the initial decision 
except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., NTSB, 925 
F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal 
courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if he or she shows that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d 1025, 1043 (E.D. Cal. 2001), afjd. 345 F.3d 683 (9th Cir. 2003). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.