U.S. Citizenship and Immigration Services

In Re: 7533850

Appeal of Nebraska Service Center Decision

Non-Precedent Decision of the Administrative Appeals Office

Date: FEB. 25, 2020

Form I-140, Petition for Multinational Managers or Executives

The Petitioner seeks to permanently employ the Beneficiary as its Vice President of Global Sales and Marketing 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).

II. EMPLOYMENT ABROAD IN A MANAGERIAL CAPACITY

The Petitioner designs pet products and housewares in the United States, and its affiliate in China, I ~ manufactures most of the products designed by the Petitioner. The Petitioner's supporting letter submitted with the petition stated that its foreign affiliate,~-----.,-----=------~ ~----------~ in China employed the Beneficiary in a managerial capacity as Vice President of International Sales and Marketing from November 2012 to August 2015. The Petitioner does not claim thatl I employed the Beneficiary in an executive 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 Beneficiary was working as a first-line manager and that he did not serve as a personnel or function manager abroad. On appeal, the Petitioner asserts that the Beneficiary served as a manager abroad.

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 high-level responsibilities consistent with the statutory definitions 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 was primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533.

With the initial petition, the Petitioner stated that the Beneficiary served as Vice President of International Sales and Marketing forl

O I but it did not specifically describe his duties. In the

Director's request for evidence (RFE), the Director stated that the Petitioner must "show distributional percentars" of the Beneficiary's time that was dedicated to each job duty that he performed for I on a weekly basis. In its supporting letter submitted with the RFE responseJ I stated that the Beneficiary's duties as Vice President oflnternational Sales and Marketing were as follows:

• Directing and managing .... I ___ _.ls marketing strategies in Japan, Canada and European countries;

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• Managing and coordinating teams in international department and production department to work closely with retailer costumers in developing and sampling new products;

• Supervising the execution of compliance procedures on international retail customers' products requirements and related out-sourcing social compliance standards;

• Directing and managing the quality control/quality assurance procedures and related record­keeping to comply with local and international regulatory requirements on consumer goods;

• Organizing and managing the field inspections of retail customers; • Directing and maintaining effective communication between sales forces and production

section to solve various products quality related issues; • Directing and making decisions on seeking and hiring employees for international

marketing/sales section, and supervising and evaluating their performance; and • Working closely with financial controller to supervise and monitor! ts financial status

and report to top executive.

In the denial decision, the Director determined that the Petitioner did not submit sufficient evidence to establish that the Beneficiary's position of Vice President oflnternational Sales and Marketing was in a managerial capacity. Therefore, the Director found that the Petitioner could not meet its burden to show that he had a full year of managerial employment with the Petitioner's foreign affiliate prior to his transfer to the United States.

On appeal, the Petitioner submitted a letter restating the Beneficiary's duties with I O I listed

above. However, it did not provide a breakdown of the percentage of time the Beneficiary devoted to each of these duties. By statute, eligibility for this classification requires that the duties of a position be "primarily" executive or managerial in nature. Sections 10l(A)(44)(A) and (B) of the Act. We are unable to determine whether the claimed managerial duties constituted the majority of the Beneficiary's duties, or whether the Beneficiary primarily performed non-qualifying administrative or operational duties. Although the Director specifically requested the information, the Petitioner's description of the Beneficiary's job duties does not establish what proportion of the duties is managerial in nature, and what proportion is non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991).

Further, the duties listed are overly broad and describe responsibilities without indicating what the Beneficiary did to meet those responsibilities. Reciting a 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 actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Here, the record does not contain the necessay detail or an adequate explanation of the Beneficiary's activities in the course of his daily routine at I For example, I I asserts that the Beneficiary supervised the execution of compliance procedures on international retail customers' products requirements and related out-sourcing social compliance standards. However, while the initial letter submitted by the Petitioner introduced these compliance procedures, products requirements, and social compliance standards, it did not indicate how the Beneficiary supervised their execution. 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. Id. Similarly, I I asserts that the Beneficiary directed and managed quality control/quality assurance procedures to comply with regulatory requirements, but while the

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Petitioner's initial letter introduced some of these procedures and requirements, it did not indicate how the Beneficiary managed them. Id. Likewise.I I asserts that the Beneficiary directed and maintained effective communication between the sales and production sections, but the record contains no examples of any communications between these departments or show how he directed them. Id.

Additionally,! I asserts that the Beneficiary worked closely withl ~s controller to supervise and monitor l's financial status. However, the record does not show how much time the Beneficiary devoted to this duty or detail his day-to-day responsibilities connected with this duty. Id. Also, as further detailed below, some of the organizational charts show that the controller had a financial department consisting of a financial assistant manager, an accounting team lead, an accountant, and a bookkeeper. With so many individuals apparently tasked with monitoring the financial status of the company, it is not clear why the sales and marketing manager was also tasked with this duty. The record does not indicate the duties of the controller or any other employees in the financial department, which further confuses the issue of the Beneficiary's responsibility for oversight of financial matters atl I Further,! I asserts that the Beneficiary directed and mana edl I's marketing strategies in Japan, Canada, and European countries. However, 's international marketing strategies are not identified in the record. As further detailed below, ~--....,....s organizational charts indicate that there were no marketing personnel in China, and it is not clear whether any of I I's international marketing needs were outsourced to employees or contractors in the United States. 1

Thus, it appears that the Beneficiary performed rather than directed any marketing activities in China since there were no marketing personnel there to support those activities. 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, e.g., sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); Matter of Church Scientology Int'l, 19 I&N Dec. 593,604 (Comm'r 1988). Further.I I asserts that the Beneficiary directed and made decisions on seeking and hiring employees for its international marketing section and that he supervised and evaluated their performance. However, as noted above, there was no marketing section for the Petitioner to supervise and evaluate in China. Doubt cast on any aspect of a petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). Based on the foregoing, the Petitioner has not established that the Beneficiary was primarily engaged in managerial duties wit~ I in China.

1 Although one of the Petitioner's organizational charts shows that it has hired marketing contractors in the United States. the Petitioner has not presented evidence to document the existence of these contractors or identified the services they have provided to the Petitioner and/or I

O I Two other organizational charts show that the Petitioner employs marketing

and art department staff. The Petitioner has also not explained if the services of these employees in the United States relate tol ts international marketing services or whether they relieved the Beneficiary from performing non-qualifying marketing duties during his tenure withl I A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its burden of proot: particularly when supporting documentary evidence would reasonably be available. The Petitioner must support its assertions with relevant, probative, and credible evidence. See MatterofChawathe. 25 T&N Dec. 369. 376 (AAO 2010).

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B. Staffing and Organizational Structure

At the time of filing, the Petitioner submitted a copy of a .__ _________ ____,Organizational Chart." It is a combined organizational chart (Combined Chart #1). Combined Chart #1 shows that

I Is CEO,I I and its general manager,! I, both supervise a sales and marketing manager, a manufacturing division production manager, and a controller in China. 2 The chart does not list names for these three employees. Combined Chart #1 also shows that the sales and marketing manager in China oversees the international sales department sales manager, the "QC Dept QC Manager," and the product development department. The chart does not list names for the international sales department sales manager or the QC Dept QC Manager or indicate that they oversee any employees. No employees are listed for the product development department. Combined Chart #1 also shows the Beneficiary in the role of Vice President of Global Sales & Marketing for the Petitioner, where he is supervised by l I, President/General Manager, and oversees a warehouse manager, an office manager/HR/payable, a research and development manager, and three salespersons. Thus, Combined Chart #1 appears to show the organization of the two companies following the Beneficiary's transfer to the United States in L-lA nonimmigrant status and does not reflect! ts organizational hierarchy during the Beneficiary's tenure withl I

With the petition, the Petitioner also submitted an organizational chart forl I that does not list the Beneficiary on it I !Chart #1). Thus, I !Chart #1 does not reflect I Js organizational hierarchy during the Beneficiary's tenure withl I The chart shows that

I Is CEO and its reneral manager both supervise the sales and marketing managed I the production manager,_ , I and the controller,! I The chart shows thatl I

Boversees a department comprised of 20 employees, including three managers. Further,! I oversees a department comprised of 165 employees, including four managers; andl I

oversees a department comprised of a financial assistant manager, an accounting team lead, an accountant, and a bookkeeper.

We note thatl I Chart #1 is written in Chinese and English, but it does not contain a proper translation certification. Any document in a foreign language must be accompanied by a foll English language translation. 8 C.F.R. § 103.2(b )(3). The translator must certify that the English language translation is complete and accurate, and that the translator is competent to translate from the foreign language into English. Id. Here, the Petitioner did not submit a properly certified English language translation ofl I Chart #1. Thus, we cannot meaningfully determine whether the translated material is accurate tnd thus sy,pports the Petitioner's claims. Given that neither chart submitted with the petition reflects~---~-'s organizational structure during the Beneficiary's tenure there, the charts do not support the Petitioner's assertion that the Beneficiary served in managerial capacity with

I I In response to the Director's RFE, the Petitioner submitted several additional organizational charts. One chart is a combined "US-China Overall" chart (Combined Chart #2) which shows that the CEO, and the general manager in China both supervise the sales and marketing manager and the factory

2 Combined Chan #1 indicates that the production manager oversees the administration department, the production depaitment, and PMC department, but it does not list any employees for these depa11ment. The chal1 also shows that the controller oversees the accounting department and bookkeeper, but it does not list any employees for these departments.

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manager in China. The chart does not list names for these two employees. Combined Chart #2 shows that the sales and marketing manager in China is also overseen by the Petitioner's VP-Global Sales & Marketing in the United States. Unlike Combined Chart #1 and I J Chart #1, Combined Chart #2 does not demonstrate that a production manager and a controller are at the same level as the sales and marketing manager. Instead, it shows the sales and marketing manager and the factory manager on the same level in the organizational hierarchy, and it appears to shows the factory manager in charge of the production and financial departments. Combined Chart #2 further shows that the sales and marketing manager in China oversees sales, the QC department manager, and the product development director. The chart does not list names for these subordinate employees or indicate that they supervise any employees. 3 Because Combined Chart #2 does not list any names for I I employees and does not reflect the same structure of Combined Chart # 1 orl I Chart # 1, it is not clear whether this chart reflects I ts organizational structure during the Beneficiary's tenure there. The Petitioner must resolve inconsistencies and ambiguities in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92.

Another chart submitted in response to the RFE shows "China Sales, Products Dev and QA/QC" and appears to be a combined chart (Combined Chart #3). At the top, it shows the President/General Manager of the Petitioner, and the CEO and the general manager of I

O I Listed beneath the

President/General Manager of the Petitioner is the Beneficiary as "VP-Global Sales & Marketing (from US)," which appears to reference his position with the Petitioner in the United States. Combined Chart #3 further shows that the Beneficiary and the CEO and general manager of I I oversee

the senior sales and marketing manager in China. I I oversees the sales ~m-a-na_g_e_r_,, .--~-----, the product development manager,! [ and the QA/QC manager,

This chart also shows that the sales manager oversees four employees, that the product development manager oversees three employees, and that the QA/QC mana~er oversees 13 employees. 4 Given that Combined Chart #3 does not appear to reflect I fs organizational structure during the Beneficiary's tenure there, the chart does not support the Petitioner's assertion that the Beneficiary served in managerial capacity withl I

In his decision, the Director noted that the record contains only combined organizational charts and that the Petitioner did not submit a separate organizational chart for the foreign entity. He found that the Beneficiary was working as a first-line manager and that he did not serve as a personnel manager abroad. He stated that no evidence was submitted to establish that a majority of employees the Beneficiary supervised occupied positions that required a minimum of a US bachelor's degree or its

3 On Combined Chart #2, the Petitioner's Vice President of Global Sales & Marketing oversees several marketing contractors in the United States, and its "Sales & Marketing/Product Dev. Mgr" oversees two marketing and sales positions, a lead product designer, and an art department director. The chart does not show any marketing personnel in China. Another chart submitted in response to the RFE shows "US External Sales Co." and indicates that the Beneficiary, in his role as the Petitioner's Vice President of Global Sales & Marketing, oversees several mr:eting' rntractors in the United States. It does not show any marketing personnel in China and does not appear to reflect 's organizational structure during the Beneficiary's tenure there. Another chart submitted in response to the RFE s ows ' S Internal Sales Marketing & Designing" and indicates that the Beneficiary, in his role as the Petitioner's Vice President of Global Sales & Marketing, oversees a sales and marketing/product development manager. Additional marketing and art ~t personnel are listed. The chai1 does not show any marketing personnel in China and does not appear to reflectl____Js organizational structure during the Beneficiary's tenure there. 4 Some of these subordinate employees are named, and some are not.

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foreign equivalent, and were degreed professionals. He also found that the evidence did not establish that the Beneficiary was the manager of an essential function.

On appeal, the Petitioner asserts that the Beneficiary was employed as a manager with I I and points to I Is employment verification statement setting forth the Beneficiary's duties and confirming that he supervised three departmental mangers with 20 employees. Further, it states that it did submit a separate organizational chart ofl l except "it had the name of the Beneficiary's replacement because he is no longer in China." It submits a new statement froml I President of regarding the Beneficiary's position atl I; a new organizational chart for.__ __ _. a chart representing the "supervisory chain" of the Beneficiary's position inl I a "2018 1-140 Chart" for I J a "2015 L-1 A Chart" forl J employment applications completed by I I and I l and an employee registration table and 3-year college graduation certificate fo~'-----~

We agree with the Director's determination that the Petitioner did not establish that the Beneficiary served as a personnel or function manager abroad. The new organizational chart for I I

I I Chart #2) shows that I Is CEO and its general manager both su ervised the Beneficiary in his capacity as "VP Int'l Sales & Marketing;" the production mana er ; and the controller,! ~ Here, the Petitioner appears to have replaced~---~ inl I Chart #1 with the Beneficiary. The chart also shows that the Beneficiary oversaw the international sales department sales manager,! l the "QC Dept Mgr,"c=J and the product development department managed I The chart also shows thatl I oversaw three employees, that D oversaw 12 employees, and thatOoversaw two employees. Further,! !Chart #2 shows that I • I oversaw a department comprised of 145 employees, and I I oversaw a department comprised of a financial assistant manager, an accounting team lead, an accountant, and a bookkeeper. I !Chart #2 does not match the organizational hierarchy shown on Combined Chart #2, where the production manager and controller were not listed as the same level as the sales and marketing manager. The role of the factory manager from Combined Ch~lso unclear. See Matter of Ho, 19 I&N Dec. at 591-92. Also, similar tol Jchart #1,L______J Chart #2 is written in Chinese and English, but it does not contain a proper translation certification. See 8 C.F.R. § 103 .2(b )(3 ). Thus, we cannot determine whether the translated material is accurate and thus supports the Petitioner's claims.

Similar to i====:]Chart #2, the supervisory chain chart submitted on appeal I I Chart #3) shows thatc==]' s CEO and its general manager both supervise the Beneficiary in his capacity as "VP - Int'l Sales & Marketing." The chart also shows that the Beneficiary oversees the international sales department sales manager,! l the "QC Dept Mgr,'1 I and the product develoRment department manager) ~ I The chart also shows thatl I oversees three employees, thatD oversees 12 employees, and thatOoversees tjo emp{□ I Jchart #3 lists the degrees held by the Beneficiary's immediate subordinates and O. However,! I Chart #3 does not match the organizational hierarchy shown on Combined Chart #2, where the production manager and controller were not listed as the same level as the sales and marketing manager. The role of the factory manager from Combined Chart #1 is also urlear. Se~f Ho, 19 I&N Dec. at 591-92. Also, similar tol !Chart #1 and.___ _ ____.Chart #2,L___J Chart #3 is written in Chinese and English, but it does not contain a proper translation certification. See 8 C.F.R.

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§ 103 .2(b )(3 ). Thus, we cannot determine whether the translated material is accurate and thus supports the Petitioner's claims.

The 2015 L- lA Chart5 and the 2018 1-140 Chart6 submitted on appeal are substantially similar to each other, excep .......... -~ ..... 2015 L-lA Chart shows the Beneficiar in the role of VP - Int'l Sales & Marketing at,..__ __ ..., and the 2018 1-140 Chart shows in the role of "Sales & Marketing Manager" at The 2018 chart indicates tha....._ __ ___. was the Beneficiary's replacement at I J and that . .__ __ __, was under the Beneficiary's supervision from the United States. Neither the 2015 or 2018 chart match the organizational hierarchy shown on Combined Chart #2, where the production manager and controller were not listed as the same level as the sales and marketing manager. The role of the factory manager from Combined Chart #2 is also unclear. See Matter of Ho, 19 I&N Dec. at 591-92. Also, the 2015 L-lA Chart and the 2018 1-140 Chart are written in Chinese and English, but they do not contain proper translation certifications. See 8 C.F.R. § 103 .2(b )(3 ). Thus, we cannot determine whether the translated material is accurate and thus supports the Petitioner's claims.

Given the inconsistencies and ambiguities in the charts submitted by the Petitioner with the petition and in response to the RFE, the Petitioner must resolve the inconsistencies and ambiguities with independent, objective evidence of the organizational hierarchy of I I and the Beneficiary's managerial role in it. See Matter of Ho, 19 I&N Dec. 591-92. On appeal, the Petitioner did not submit any independent, ob· ective evidence corroborating the employees' roles in the organizational hierarchy at On appeal, the Petitioner submits employment applications completed by I I and '----,-------,, which contain personal information about each individual, including education and experience, and appear to have been completed and submitted by the individuals in advance of their purported employment wit~ I The documents are not independent, objective evidence corroborating the employees' roles in the organizational hierarchy at LeeDong. Id. Further, the documents are written in Chinese and translated into English, but they do not contain proper translation certifications. See 8 C.F.R. § 103.2(b )(3). Instead, on appeal, the petitioner submits a business license for I l the company that translated the documents submitted on appeal from Chinese into English. It states that it is used "only for the establishment of the translator's identity" and does not certify that the English language translations are complete and accurate, and that the translator is competent to translate from Chinese into English. Thus, we cannot determine whether the translated material is accurate and thus supports the Petitioner's claims.

1n addition,p1e ~mp lore registration table for I , 1 submitted on appeal indicates that he was ~yed b as a QC supervisor from November 2011 to July 2016. PresumablyJ I L__Jis the referenced in some of the organizational charts, although the record does not provide independent evidence to confirm this. See Matter o_[Ho, 19 I&N Dec. 591-92. Although it appears to support I Is title as QC Supervisor with I I it does not establish that the Beneficiary supervised him. Also, the employee registration table is written in Chinese and translated into English, but it does not contain a proper translation certification. See 8 C.F.R. § 103.2(b)(3).

5 The 2015 L-1 A Chart shows substantially the same organizational information as I I Chart #1, excep~._ ___ _.I replaced the Beneficiary and there were less packers and sewers in 20,.._1=5·_~ 6 The 20181-140 Chart shows the same organizational information asl !Chart #1, except it shows thatl~--~I is under the Beneficiary's "co-supervision" from the United States.

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Thus, we cannot determine whether the translated material 1s accurate and thus supports the Petitioner's claims.

The statutory definition of"managerial capacity" allows for both "personnel managers" and "function managers." See section 10l(a)(44)(A) 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 supervisor's supervisory duties unless the employees supervised are professional." Id. 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. See section 10l(a)(44)(A)(i) of the Act; 8 C.F.R. § 204.5(i)(2). Here, the Petitioner has not established that the Beneficiary served as a personnel manager at LeeDong.

To determine whether the 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. 7 In his RFE, the Director stated that the Petitioner must show "who the beneficiary managed and those subordinates' job duties; the minimum requirements of the beneficiary's position as well as the subordinates' positions; and evidence of the subordinates meeting the definition of a professional being managed by the beneficiary." Although the Director requested the information, the Petitioner did not establish or explain how any of the positions require a bachelor's degree. It did not submit evidence of the subordinates' job duties or the minimum requirements of the subordinates' positions. Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). Instead, the Petitioner asserts that the Beneficiary supervised the sales department manager, who has a master's degree in marketing; the product development department manager, who has a bachelor's degree in hotel management; and the QA/QC department manager,~___,,,.--....., who has a 3-year associate degree in software application. ~ioner did not provide copies of the bachelor's or master's degrees claimed to be held by L___Jand! I and I l's 3-year college graduation certificate provided on appeal does not indicate that he has a bachelor's degree. 8 Thus, the Petitioner has not established that any of the Beneficiary's subordinates possess baccalaureate degrees and that their positions require such degrees, such that we can consider these employees to be professionals.

Further, despite claiming that the Beneficiary directly managed three professional employees, the charts depicting! Is management structure are not clear as to whether the Beneficiary assumed the role of a personnel manager. On appeal, the petitioner asserts that "[ e ]ven if the documentation on beneficiary's position inl l weighted a bit light in the petition, it still should not necessarily lead the USCIS to conclude that petition was just a first-line supervisor atl l" However, due to the conflicting organizational charts and the lack of supporting evidence regarding the employment

7 Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section 101 ( 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." 8 The degree is written in Chinese and translated into English, but it does not contain a proper translation certification. See 8 C.F.R. § 103.2(b)(3).

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and duties of the Beneficiary's subordinates, the Petitioner has also not shown that the Beneficiary's subordinates supervise other employees or that they manage a department or function, such that they can be classified as managers or supervisors. The record does not clearly establish which staffreported to the Beneficiary in China or the nature and scope of his personnel-related duties during that time. If the Beneficiary did in fact oversee the three employees as claimed, the record does not clearly define the duties performed by these employees or demonstrate the educational credentials of those staff members. Thus, the Petitioner has not shown that the Beneficiary's subordinate employees are supervisory, professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act.

We also find that the Petitioner has not provided sufficient evidence demonstrating 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 101(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 will primarily manage, as opposed to perform, the function; ( 4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function's day-to-day operations.

Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017).

Here, the Petitioner has not clearly described the duties performed by the Beneficiary in managing an essential function. The record does not demonstrate what proportion of the Beneficiary's duties with LeeDong were managerial functions and what proportion were non-managerial. Absent a clear and credible breakdown of the time spent by the Beneficiary performing his duties, we cannot determine what proportion of the duties were managerial, nor whether the Beneficiary primarily performed the duties of a function manager. IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).

In addition, the Petitioner has not clearly identified a particular function that the Beneficiary managed atl I On appeal, the Petitioner submits a letter stating that international marketing and sales are "an essential function of the company since I ~ not only supplies I I in US and Canadian market, but also directly supplies retailors Japanese and French relators." However, it has not demonstrated that the function was a clearly defined activity or that the function was essential to the organization. As previously detailed herein, the record does not demonstrate the Beneficiary primarily managed, as opposed to performed, the function; that the Beneficiary acted at a senior level within the organizational hierarchy or with respect to the function managed; or that the Beneficiary exercised discretion over the function's day-to-day operations. We note that the Beneficiary was purportedly overseen by the CEO and the general manager ofl l but the record does not detail their duties or describe their managerial and/or executive roles in the foreign entity. Without a clear picture of the Beneficiary's role in the leadership hierarchy ofl I we cannot determine that he was a function manager.

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A petitioner has the burden of establishing that a beneficiary will "primarily" perform managerial or executive duties. See section 10l(a)(44) of the Act. Whether a beneficiary is an "activity" or "function" manager turns in part on whether the Petitioner has sustained its burden of proving that their duties are "primarily" managerial. See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016). For the reasons discussed above, it has not done so here.

Based on our review of the totality of the evidence, including the Beneficiary's job duties and the foreign entity's organizational structure, the Petitioner has not established that the Beneficiary had at least one full-year of employment abroad in a managerial capacity prior to his transfer to the United States in L-lA status in August 2015.

C. Relevant Three-Year Period

The Petitioner must establish that the Beneficiary has been employed by a qualifying entity outside the United States in a managerial or executive capacity for at least one year in the three years immediately preceding the filing of the petition. 8 C.F.R. § 204.5(j)(3)(i)(A). In the multinational executive or manager immigrant context, if a beneficiary entered the United States to work for a qualifying entity as a nonimmigrant, U.S. Citizenship and Immigration Services (USCIS) will reach back three years from the date of his or her admission to determine whether he or she had the requisite one year of employment. Matter of S-P- Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018); 8 C.F.R. § 204.5(j)(3)(i)(B). At the time of filing the petition in July 2018, the Beneficiary was employed in the United States by the Petitioner in L-lA nonimmigrant status. His initial admission in L-lA status was on August 31, 2015. Therefore, based on 8 C.F.R. § 204.5(j)(3)(i)(B), the Petitioner must establish that the Beneficiary worked for its foreign affiliate in a managerial capacity for at least one year between August 31, 2012, and August 30, 2015. With the ~etition, the Petitioner submitted the Beneficiary's resume which indicated that he joined I

O in China in November 2011 as

Manufacturing Manager and later served as Vice President oflntemational Sales and Marketing from November 2012 to August 2015. A letter froml I submitted in response to the Director's RFE corroborated this information. However, in a "Certification of Transfer" dated May 4, 2019, from I I submitted in response to the director's RFE, it stated that the Beneficiary 'joined~ I on November 11, 2015." This conflicts with the Petitioner's prior assertion that the Beneficiary joined

I I in 2011. The Petitioner has not resolved this inconsistency in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. In any future filings, the Petitioner must establish that the Beneficiary was employed by the foreign entity in a managerial capacity for at least one year in the relevant three year period preceding the Beneficiary's transfer to the United States in August 2015.

III. ABILITY TO PAY

Although not addressed by the Director, the record does not contain regulatory-required evidence of the Petitioner's ability to pay the proffered wage from the priority date on July 20, 2018, and continuing until the Beneficiary obtains lawful permanent residence. 9 The regulation at 8 C.F.R.

9 The annual proffered wage is $75,000.

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§ 204.5(g)(2) requires that "[ e ]vidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements."

The Petitioner submitted regulatory-prescribed evidence of its ability to pay the proffered wage in 2017. However, the record does not contain regulatory-prescribed evidence of its ability to pay for 2018 onward. Without this regulatory-required evidence, we cannot affirmatively find that the Petitioner has the continuing ability to pay the proffered wage from the priority date. For this additional reason, the petition cannot be approved.

ORDER: The appeal is dismissed.

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