U.S. Citizenship and Immigration Services

In Re: 7235074

Appeal of Nebraska Service Center Decision

Non-Precedent Decision of the Administrative Appeals Office

Date: FEB. 7, 2020

Form I-140, Petition for Multinational Managers or Executives

The Petitioner, an LED lighting and electronics business, seeks to pennanently employ the Beneficiary as its general manger under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b )( 1 )(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 Nebraska Service Center denied the petition, concluding that the Petitioner did not establish that the Beneficiary was employed abroad in a managerial or executive capacity for at least one year in the three years preceding his entry to the United States as a nonimmigrant.

In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

An immigrant visa is available to a beneficiary who, in the three years preceding the filing 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. Section 203(b)(l)(C) of the Act.

The Form I-140, hnmigrant Petition for Alien Worker, 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 filing of the petition, that the 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. § 204.5G)(3).

"Managerial capacity" means an assignment within an organization in which the employee primarily manages the organization, or a department, subdivision, function, or component of the organization; 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; has authority over personnel actions or functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. Section 10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A).

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 (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. Section 10l(a)(44)(C) of the Act.

II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY

The Director determined that the Petitioner did not establish that the Beneficiary had one year of employment abroad in a managerial or executive capacity within three years preceding his entry to the United States. Specifically, the Director found that the record contains unresolved discrepancies regarding the position the Beneficiary held abroad, his specific dates of employment, the organizational structure of the employer abroad, and the actual duties the Beneficiary performed abroad. On appeal, the Petitioner asserts that the Director applied a higher standard of proof than the applicable "preponderance of the evidence" standard; that it submitted relevant, probative, and credible evidence of the Beneficiary's managerial position abroad; and that the Director's denial was arbitrary and capricious.

The regulations require that, if a beneficiary is already in the United States working for an entity that has a qualifying relationship with his or her foreign employer, the petitioner must establish that the beneficiary was employed by the entity abroad in a managerial or executive capacity for at least one year in the three years preceding the beneficiary's entry as a nonimmigrant. See 8 C.F.R. § 204.5(i)(3)(i)(B). The Director noted that the qualifying period of employment abroad was from November 2006 to November 2009 based on the Beneficiary's periods of stay in the United States starting in November 2009. The Petitioner's supporting letter submitted with the petition stated that its foreign affiliate employed the Beneficiary in a managerial capacity as sales director from 2007 to 2009, so we will not discuss whether the sales director position was in an executive capacity.

USCIS reviews the totality of the evidence when examining a beneficiary's claimed managerial capacity abroad, including the beneficiary's job duties, the foreign entity's organizational structure, the duties of a beneficiary's subordinate employees, the presence of other employees who relieved the beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in the business. Accordingly, our analysis of this issue will focus on the Beneficiary's duties as well as the foreign entity's staffing levels and reporting structure at the time of his employment abroad.

A. Duties

The Petitioner must show that the Beneficiary performed certain high-level responsibilities consistent with the statutory definition of managerial capacity. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). In addition, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational activities alongside

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the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533.

In a supporting letter submitted with the petition, the Petitioner stated that the majority of the foreign entity's "business revenue comes from sale [sic] and providing professional services of LED lighting products." In a letter submitted with the Petitioner's response to the Director's request for evidence (RFE), the Petitioner described the Beneficiary's role as sales director as follows:

• Set the LED Display Division's annual, quarterly, and monthly goals, direct subordinate sales and marketing managers to fulfill the goals, and review sales statistics and provide feedback; 10% of time;

• Establish the organizational structure of the sales and marketing departments, and clarify the functions and responsibilities of each department to achieve high efficiency in operations; make adjustment to the organizational structure when necessary; 10% of time;

• Based on the company's overall business strategy, formulate appropriate marketing strategy and operation plans; 10% of time;

• Make company policies to motivate best practices sales efforts of the company's LED display products; 8% of time;

• Provide direction and feedback to the parent company's R&D department and manufacturing factory to meet market needs based on full understanding of LED display sales trend and indicators of sales data; 8% of time;

• Provide training to staff on effective sales and marketing strategies of LED display products; 8% of time;

• Oversee the implementation of market expansion plans in China and global markets, and establish regional market strategies; 8% of time;

• In charge of dealer development and retention program, and adjust sales commission and cash rewards plans based on dealers' sales performance, and increase the company products' market share; 8% of time;

• Establish the company's long-term and short-term goals and effective business models in selling and promotion LED display products; 6% of time;

• In charge of personnel matters, including hiring and firing, and performance evaluation of subordinate staff; 6% of time;

• Represent the company at industry trade shows and exhibitions; develop management level relationships with major dealers in the LED display industry; 6% of time;

• Make financial budgets to implement for business operations including marketing and sales strategies to achieve financial goals; 6% of time;

• Review periodic reports on market analysis and industry trends of LED display; 6% of time.

In his decision, the Director stated that the job duties were "vague and generalized" and "are not persuasive" on the issue of whether the Beneficiary was employed in a qualifying role. He noted that the job description indicates that the Beneficiary was in charge of personnel matters and in charge of the dealership and development retention program, but that the record does not establish the specific tasks the Beneficiary performed. Additionally, the Director stated that some of the Beneficiary's duties are non-qualifying tasks, including making financial budgets, providing training, and representing the company. Further, the Director noted that several of the duties overlap, including a combined 34% of time setting goals and policies, with no insight as to how the tasks differ.

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The Director also noted inconsistencies between the job duties listed in this petition and those detailed in the Petitioner's prior Form I-140 filed on behalf of the Beneficiary. In that case, the Petitioner submitted the following description for the Beneficiary's foreign sales director position:

• Develops and implements strategic marketing plans and sales plans and forecasts to achieve objectives for LED lighting products. (10%)

• Directs staffing, training, and performance evaluations to develop and control sales and marketing programs. (10%)

• Directs sales forecasting activities and sets performance goals accordingly. (5%) • Meets with key clients, guiding sales representatives in maintaining relationships

and negotiating and closing deals. (10%) • Plans and oversees advertising and promotion activities including print, online,

electronic media, and direct mail. Ensure effective control of marketing results and take corrective action to guarantee that achievement of marketing objectives falls within designated budgets. (5%)

• Represents [the foreign entity] at trade shows and events to promote products. (5%) • Monitors competitor products, sales and marketing activities. (10%) • Develops and recommends pricing strategy to produce the highest possible long­

term market share. (5%) • Oversees and evaluates market research and adjusts marketing strategy to meet

changing market and competitive conditions. (10%) • Direct staff to draft periodic sales report showing sales volume, potential sales, and

areas of proposed client base expansion. (5%) • Reviews and analyzes sales performances against programs, quotes and plans to

determine effectiveness. ( 10%) • Coordinate liaison and collaboration between sales division and other sales related

units, including marketing division and manufacturing branch (5%) • Assists other departments to prepare product manuals and technical publications.

(5%) • Directs LED lighting product research and development. (5%) 1

The Director stated that many of the duties included in the prior petition are not included in the duties listed in this petition, and that the Petitioner had changed the job description throughout that record. The Director noted our decision on the Petitioner's prior petition for the Beneficiary, where we highlighted that in later versions of the job description, the Petitioner eliminated many of the non­managerial tasks that appeared in earlier versions, such as developing client relationships, personally analyzing clients' lighting needs, recommending products, designing and implementing LED projects, providing after sales service, and collecting information on trade shows. Moreover, we stated that the Petitioner added responsibilities for pricing, marketing, advertising, and product development which it did not mention previously. A petitioner must establish that the position offered to a beneficiary,

1 As we noted in our prior decision on the previous petition, a number of duties are vague, such as coordinating "liaison and collaboration" between divisions and ensuring "effective control of marketing results." We also noted in our prior decision that duties such as "develops and implements strategic ... sales plans and forecasts," and "directs sales forecasting activities" appear to overlap.

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when the petition was filed, merits classification as a managerial or executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). 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'r 1998). On appeal, the Petitioner does not address the different job descriptions contained in the record. The Petitioner has not resolved these 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).

On appeal, the Petitioner asserts that the job description detailed in the Director's decision is the Beneficiary's job description at his foreign employer, and that the Director mistook it for his job description as the U.S. company. However, the Director clearly stated that he was analyzing the Beneficiary's duties as sales director abroad. Regarding the Director's assertion that the duties are vague and generalized, the Petitioner states on appeal that the job description "offers substantial details about the position's work content, with a percentage of work time assigned to each job responsibility." It farther states that the "job description corresponds to the corporate structure and company functions as indicated in the organizational charts." The Petitioner asserts that the 'job description should be viewed together with the organizational charts, the summary of duties of the Beneficiary's direct reports, payroll records, personnel records, company work flow chart," as well as documentation showing the Beneficiary's managerial duties at the foreign entity. However, as farther discussed below, due to unresolved discrepancies in the organizational charts and payroll records, those records do not establish that the Beneficiary actually performed primarily managerial job duties. On appeal, the Petitioner has not resolved the inconsistencies in the varying job descriptions with independent, objective evidence pointing to where the truth lies. Id. Doubt cast on any aspect of a 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 591.

The Director indicated that the job description stated that the Beneficiary was in charge of personnel matters and in charge of the dealership and development retention program, but that the record does not establish the specific tasks the Beneficiary performed. 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 ofreiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d. Cir. 1990). Specifically, the job description provided in response to the RFE states that the Beneficiary spent 6% of time in charge of personnel matters, including hiring and firing, and performance evaluation of subordinate staff; and that he spent 8% of his time in charge of the foreign entity's dealer development and retention program, adjusting sales commission and cash rewards plans based on dealers' sales performance, and increasing the company products' market share. On appeal, the Petitioner asserts that we overlooked evidence of the Beneficiary's managerial duties including documentation in the record related to performance appraisals, work processes, provision of computers, training, and sales incentives. However, the Petitioner asserted in the previous petition that the Beneficiary spent 10% of his time directing staffing, training, and performance evaluations to develop and control sales and marketing programs. It did not mention hiring and firing of personnel in that description and, on appeal, it does not explain the difference in time allotted to personnel matters. See Matter of Ho, 19 I&N Dec. at 591-92. Additionally, the prior job description did not specifically mention the dealership and development retention program or the adjustment of sales commission and cash rewards plans based on dealers' sales performance. It did state that the Beneficiary spent 5% of his time developing and

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recommending pricing strategy to produce the highest possible long-term market share which is less than the 8% mentioned in the prior petition related to market share. The Petitioner did not explain the discrepancies on appeal, and therefore, his actual job duties are unclear. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Thus, given these unresolved inconsistencies in the job descriptions, the documentation related to performance appraisals, work processes, provision of computers, training, and sales incentives do not establish that the Beneficiary's duties were primarily managerial.

Similarly, regarding the Director's assertion regarding who carries out the non-qualifying activities related to the Beneficiary, the Petitioner points to meeting minutes from 2008 where the Beneficiary discussed with staff issues relating to planning, product customization, advertising, promotion, pricing, division of sales regions, and sales goals. However, as further detailed below, the organizational charts contain unresolved ambiguities regarding the staffing, hierarchy, and structure of the foreign entity. Given these ambiguities, documentation related to work performed by the Beneficiary's purported subordinates does not establish that the Beneficiary's duties were primarily managerial.

Further, the Petitioner asserts on appeal that the non-qualifying tasks mentioned by the Director, including making financial budgets, providing training, and representing the company, should be considered qualifying managerial duties because of the actual business needs of the foreign company whose primary function is sales. However, the sales function of the foreign entity does not transform non-qualifying tasks into qualifying ones. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof. The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner must show that the Beneficiary was primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. It has not done so here.

We noted in our prior decision that the Petitioner included other duties in the prior job description that are non-managerial, such as promoting products at trade shows, assisting other departments with manuals and technical publications, and monitoring competitor's products and marketing activities. Those job duties were removed from the job description in this case, and the Petitioner has not explained the discrepancies in the job descriptions. Additionally, on appeal, the Petitioner does not address the overlapping job duties contained in the record. We note that the President is located at the top of all of the organizational charts for the foreign entity, yet his duties and role in the company have not been clarified. The Petitioner has not resolved the inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Because of these unresolved ambiguities, we cannot determine that the submitted list of tasks, or the percentage of time allocated to each duty, as set forth in the Petitioner's response to the RFE accurately or completely captures the Beneficiary's actual duties during his employment as sales director abroad.

On appeal, the Petitioner asserts that the Director applied a higher standard of proof than the applicable "preponderance of the evidence" standard. It cites and submits a copy of a nonprecedent AAO decision as support for the proposition that a "petitioner need only establish that the beneficiary devotes more than half his time to managerial duties" and that the Director failed to apply the preponderance of the evidence standard here. This decision was not published as a precedent and

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therefore does not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts of an individual case, and may be distinguishable based on the evidence in the record of proceedings, the issues considered, and applicable law and policy. The "preponderance of the evidence" standard requires that the evidence demonstrate that the claim is "probably true," where the determination of "truth" is made based on the factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (quoting Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). The truth is to be determined not by the quantity of evidence alone but by its quality. Thus, in adjudicating the petition pursuant to the preponderance of the evidence standard, a director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. Id. Here, we acknowledge that the Beneficiary likely had a senior sales position within the foreign entity's LED display division prior to coming to the United States; however, the fact that the Beneficiary supervised a department or component of the business does not necessarily establish eligibility for classification as a multinational manager. By statute, eligibility for this classification requires that the duties of the Beneficiary's position abroad be primarily managerial in nature. Section 101(A)(44)(A) of the Act. Even though the Beneficiary may have exercised discretion over one of the foreign entity's sales divisions, the various position descriptions submitted are insufficient to establish by a preponderance of the evidence that he performed primarily managerial job duties.

Considering these deficiencies in light of the foregoing discussion, the Petitioner has not overcome the deficiencies in the record regarding the description and nature of the position.

B. Staffing and Organizational Structure

In this case, the Petitioner submitted organizational charts and payroll records for the foreign entity for 2008 and 2009. 2 They indicate the following staff and positions:

2 We noted in our :rior decision that the Petiti.oner initially submitted a foreign ertv argar7ational chart from 2009 which showed the! I-based sales operation, an accounting employee, and a ~--~-based factory overseen by the foreign entity's president. The chait depicted the Beneficiary as Director of the "LED Display Division," overseeing a marketing employee, three sales managers in an "international sales" department, and two sales managers in a "domestic sales" department, for a total of six named employees. Later, it submitted three different organizational charts, including one chart dated 2008 and two dated 2009. The chart from 2008 indicates that the Beneficiary supervised a marketing manager and an international sales manager, who, in turn supervised two sales managers. On the first of two charts from 2009, the Petitioner added names for international and domestic sales department managers, thereby showing a total of eight direct and indirect subordinates, rather than the six shown on the initial chart. A chart labeled "2009 No. 2" is the same, but includes a "product manager" reporting directly to the Beneficiary. The Petitioner indicated that this employee was later transferred to its manufacturing affiliate inl I In our prior decision, we compared the "2009 No. 2" organizational chart to the foreign entity's payroll register for January 20 IO and the 20 IO organizational chart. Out of the nine employees depicted as the Beneficiary's subordinates in the LED Display Division on the latter 2009 organizational chart, only two were on the foreign entity's payroll as of January 20 I 0. In addition, according to the 20 IO chart, the "LED Display Division" was staffed by a total of six employees, not ten as depicted on the 2009 No. 2 chart. Specifically, the chart indicates that the sales director who replaced the Beneficiary supervised an international sales manager with two subordinate sales associates, and a domestic sales manager with one subordinate sales associate. Due to these unexplained discrepancies, we determined that the Petitioner's organizational charts for 2008 and 2009 were not sufficiently corroborated in the record.

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2008 Organizational Chart for Sales Operation, .... ! --~I: President,.__-~~-~

Factory, L_ __ 1 -----, Sales Operation,.___..,....,....__.

Lighting Division Directort-------.--~ International Sales, '--r=======---.

Sales Manager,.,__ __ ---.-, · Sales Manager'.'. Marketing,I O J

LED Display Division Director, Beneficiary Marketing,.__---.::,---.===L-__, International ales i--==-~---'

Sales, ___ ...........,

~-~ Sales, Accounting, I I ~--~

2008 Payroll Records:

• Chief Sales Directof.i Benel~ciar\ • International Sales, • Marketing Manager • Financial Manager,

;===='-----,

• Chief Sales Officer ,::;:..=;.=;..---..----..........

• Sales Director

• Salesperson,

• Salesperson,

• Salesperson,

2009 Organizational Chart for Sales Operation, .... ! ___ _.

President,I........._~......,.... Factory,~!----,

Sales Operation, .... I ___ _. Lighting Division Director,-=====:;-u~

International Sales,~..,....-----'c...., Sales Manager, Sales Manager, Sales Mana er

Marketing,.___~_....,...... LED Display Divi · Beneficiary

Marketing,.__ __ ,...._..,____, International Sales

Sales, Sales, Sales,

~-----

'------~

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Domestic SaleEJ · Sales, · Sales,

Accounting,~!--~

2009 Payroll:

• Chief Sales Director, Beneficiary • International Sales,L..r-------,1 • Marketing Managerr-"'====~=.----• Financial Manager,.__,_ __ ....._ __ _, • Chief Sales Offt->i"""""'r....._ ______ ___.J

• Sales Director,

• Sales Director

• Salesperson

• Salesperson

• Salesperson,

• Salesperson,

• Salesperson,

• Salesperson,

• Salesperson,

The Director determined that there were several discrepancies in the pos1t10ns held by the Beneficiary's direct reports, and that the organizational charts were not supported by the payroll records. Specifically, he stated that the organizational chart indicates that I I was an international sales manager and not a sales manager as reflected on the payroll. On appeal, the Petitioner asserts while the Chinese translation of his title was "Sales Director" in the payroll records, it actually means "person in charge" and can refer to a "head, director, manager, executive, supervisor, and chief" It submits translation suggestions from a website on appeal in support of its claim and states that despite the two different titles,! lwas in charge of the international sales department and oversaw two sales staff in 2008 and three sales staff in 2009. However, the translator who translated the documents in the record certified that the English language translations are complete and accurate, and that the translator is competent to translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). On appeal, the Petitioner cannot alter the certified translations in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izwnmi, 22 I&N Dec. at 17 6.

Further, the petitioner asserts that the variations inl l's title "both correspond tol l's position in the organizational chart as the person in charge of International Sales Department." However, the organizational charts differ. On the versions detailed above, sales managers are one level lower than the international sales manager in the organizational hierarchy. On appeal, as farther detailed below[ the Petitioner submits new organizational charts that retitle the sales managers as sales staff. Thus, if_ Is title of sales manager on the payroll documents reflects his actual position, his job was reclassified as sales staff on appeal. While sales staff are still one level lower than the international sales manager in the organizational hierarchy, as farther explained below, the Petitioner has not established that the positions of sales manager and sales staff have the same job duties. The Petitioner has not resolved the discrepancies with independent, objective evidence ofl ~s job

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title and duties. See Matter of Ho, 19 I&N Dec. at 591-92. The Petitioner asserts that the internally created "List of Employees and Job Duties (Year 2008)" and "List of Employees and Job Duties (Year 2009)" support its claim, but these documents are not independent, objective evidence ofl

O Is

job title and duties.

The Director indicated that the organizational charts show that I O

J was the Beneficiary's marketing manager but also shows tha~~----~~as the marketing manager for a different director in the lighting division. The Petitioner asserts on appeal that they are the same person "who is in charge of International Marketing for both Lighting Division and LED Display Division." It asserts that c=J' is the given name and 1 I is the family name and that in Chinese culture, a person's family name is followed by her given name. However, given that cultural difference, it is not clear why the organizational charts listed her name both ways, and the Petitioner has not explained why it listed them differently. Further, the Petitioner asserts on appeal that the Beneficiary's actual job title is "Chief Sales and Marketing Director," so it is unclear how I I could be in charge of international marketing for both the lighting and LED display divisions and "implement marketing strategy for the company" given the Beneficiary's seemingly similar role as chief marketing director who "develops and implements strategic marketing plans" to achieve objectives for LED lighting products. See id.

Further, the Director indicated that the payroll records indicate that the Beneficiary was chief sales director and I I was the chief sales officer, not the LED display division and lighting division directors as listed on the organizational chart. On appeal, the Petitioner asserts that while the titles of the Beneficiary and I l"could have been translated in exactly the same way," "apparently a few English translations" are also acceptable. However, the translator who translated the payroll documents certified that the English language translations are complete and accurate, and that the translator is competent to translate from the foreign language into English. 8 C.F.R. § 103.2(b)(3). The Petitioner further states that I l's tiles of "Chief Sales Officer/Director" and "Lighting Division Director" "both make sense" given that the foreign entity focuses on sales, and that the titles were used interchangeably by the foreign entity. However, the Petitioner's explanation does not resolve the discrepancies in the job titles in the record. See Matter of Ho, 19 I&N Dec. at 591-92. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof

Also, the Director noted that the chart does not identify who served as the Beneficiary's supervisor in Sales Operation: I I The chart shows that the sales operation reports to President I I but this person is not listed on the payroll records. On appeal, the Petitioner asserts that ~versees three functions shown in the organizational chart: manufacturing operations at the L___}'actory, sales operations in I I and accounting operations. 3 It further states that the sales operation "refers to the company operations of 1

0 I which is a function supervised by the

President. The Sales Operation is not a position oJ a repo[ to the President." It states that the Beneficiary reports tol I as President, and that is not listed on the payroll because he elected not to receive wages from the foreign entity. However, it is not clear that, based on applicable

3 An individuaI,c=J is listed under the accounting "function" on the organizational chart, indicating that it is a position that reports to the President.

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laws in China, the foreign entity's President could properly be omitted from payroll records. 4 See Matter of Ho, 19 I&N Dec. at 591-92.

Further, the Director noted that several sales managers are identified as salespersons on the 2009 payroll records, and the sales staff available under the Beneficiary's supervision are listed as "sales" while the sales staff under I J J are all sales managers. Since the sales managers did not have any direct reports, the Director indicated that it was unclear how the positions of sales and sales manager differ or if the organizational charts reflect the accurate hierarchy. On appeal, the Petitioner states that "the submitted organizational chart could have been more accurate." It asserts that the positions of sales managers and sales are both first-line employees with the same job duties. It states that the "organizational charts were directly drafted in English based on the Chinese language payroll records," and that the charts deviated from the payroll records "through the transition of the two languages." Due to the "confusion," it submits new 2008 and 2009 organizational charts on appeal which it states are "more accurate." They differ from the previously submitted charts by reclassifying sales managers as sales staff at the lowest level of the company hierarchy.

On appeal, a petitioner cannot materially change a position's title or its level of authority within the organizational hierarchy, or materially change the associated job responsibilities. A petitioner must establish that the position offered to a beneficiary, when the petition was filed, merits classification as a managerial or executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 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 Izwnmi, 22 I&N Dec. at 176. Although the Petitioner asserts that positions of sales managers and sales staff are both first-line employees with the same job duties, it has not supported its assertions with independent, objective evidence pointing to where the truth lies. The removal of the term "manager" indicates the removal of managerial or supervisory duties from the job description. Doubt cast on any aspect of a 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. Matter of Ho, 19 I&N Dec. at 591.

The Director further indicated in his decision that other evidence in the record shows that I I is the sales director and I

O I is the director. Due to discrepancies in the record, the Director found

that the Beneficiary's direct reports did not relieve him from performing non-qualifying duties. On appeal, the Petitioner asserts that I lis the person in charge of the international sales department; I I is the person in charge of the domestic sales department; and in the company, "they were referred to as the Sales Director of their respective departments." The Petitioner's explanation does not resolve the discrepancies in the job titles in the record. See id. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof.

The statutory definition of"managerial capacity" allows for both "personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to primarily supervise and control the work of other supervisory, professional, or managerial employees. Contrary to the common understanding of the word "manager," the statute plainly states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of the

4 For example, a corporate officer might be required to be paid wages under applicable tax laws.

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supervisor's supervisory duties unless the employees supervised are professional."5 Section 10l(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions. Section 10l(a)(44)(A)(iii) of the Act. Given the unresolved discrepancies in the record regarding the subordinates' job titles and duties, the Petitioner has not established that the Beneficiary's subordinates performed managerial or supervisory duties. In addition, we noted in our prior decision that although the Petitioner indicated that all employees named in the organizational chart have a "college degree" or "bachelor's," it did not establish that a bachelor's degree is actually required to perform sales work for the company. The Petitioner did not provide any evidence in this case to establish that a bachelor's degree is required for the Beneficiary's subordinates. Therefore, the evidence does not support a conclusion that the Beneficiary's subordinates were supervisors, managers, or professionals, or establish that he acted primarily as a personnel manager.

The Petitioner has also not established, in the alternative, that the Beneficiary was employed abroad as a function manager. 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 10l(a)(44)(A)(ii) of the Act. If a petitioner claims that a beneficiary will manage an essential function, it must clearly describe the duties to be performed in managing the essential function. In addition, the petitioner must demonstrate that "(1) the function is a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the beneficiary primarily managed, as opposed to performed, the function; (4) the beneficiary acted at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary exercised discretion over the function's day-to-day operations." Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017). In this matter, the Petitioner has not articulated a function manager claim.

In his decision, the Director noted additional discrepancies regarding the Beneficiary's pos1t10n abroad. A letter from the employer abroad stated that the Beneficiary joined the company in 2006 in sales and "had worked his way up to the position of Sales Director of LED Display Division" by August 2007. However, a letter of appointment indicated that the Beneficiary was Chief Sales and Marketing Director effective August 1, 2007. On appeal, the Petitioner sates that the varying titles in the record are minor variations of the Beneficiary's actual job title: "Chief Sales and Marketing Director." It asserts that even though it uses slightly different names for the Beneficiary's position, the names don't cause confusion for its staff, and it "meant the beneficiary's position as indicated in the organizational chart which supervises two levels of staff" However, a petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proof As detailed above, the Petitioner has not submitted independent, objective evidence resolving the discrepancies in the Beneficiary's job title. See Matter of Ho, 19 I&N Dec. at 591-92.

5 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section 10l(a)(32) of the Act, states that ·'[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."

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Additionally, the Director noted that the payroll records for 2008 and 2009 indicate that the Beneficiary was Chief Sales Director and thatl I the Beneficiary's direct report, was the Sales Director. He stated that it is not clear how the Beneficiary supervised a sales director when he was also a sales director. On j°peal, ty Petitioner asserts that the Beneficiary was the "Chief Sales ( and Marketing) Director" and was the sales director. It states that the Beneficiary was one level above I land points to the different duties of both individuals - the Beneficiary "supervisesD

c=J's International Sales Department and I I supervises his subordinate Sales Staff" Although all of the organizational charts all show that the Beneficiary was one level above! lin the company hierarchy, the discrepancies in the job titles remain unresolved. See id.

In addition, the Director noted that in the prior petition, the Petitioner submitted the Beneficiary's labor contract for the period December 2008 through November 2009, which indicates that the Beneficiary was under contract "to do sales work in International Sales Division, taking the position of Sales." He determined that the discrepancies cast doubt on the Beneficiary's purported managerial position abroad. On appeal, the Petitioner asserts that "the labor contract did not differentiate the hierarchy, or positions within our organization, and the description of the beneficiary's title is not quite accurate." It states that it adjusted staff positions pursuant to a clause in the labor contract permitting it to reassign work departments and positions, and that a title in a labor contract should not be a deciding factor in determining whether the Beneficiary held a managerial position abroad. However, we review the totality of the evidence when examining a beneficiary's claimed managerial capacity abroad, including the beneficiary's job duties, the foreign entity's organizational structure, the duties of a beneficiary's subordinate employees, the presence of other employees who relieved the beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to understanding a beneficiary's actual duties and role in the business. The discrepancy in the labor contract was not a deciding factor in the Director's determination, but one factor of many that were reviewed in examining the Beneficiary's position abroad.

On appeal, the Petitioner states that the variations in the Beneficiary's job titles in the record are only "reasonable minor and technical variations" of the Beneficiary's title abroad and do not constitute a "conflict of material facts." We disagree. As discussed above, the Beneficiary's conflicting job titles of Sales Director, LED Display Division Director, Chief Sales Director, Sales, and Chief Sales (and Marketing) Director, are material to eligibility in this case. See section 203(b)(l)(C) of the Act. The Petitioner did not establish that the Beneficiary had one year of employment abroad in a managerial capacity within three years preceding his entry to the United States.

Based on the number of unresolved ambiguities in the record regarding the Beneficiary's job title, his job duties, and the structure of the foreign entity during the relevant time period, the Petitioner has not established that he had the requisite one year of employment in a managerial capacity abroad.

ORDER: The appeal is dismissed.

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