dismissed EB-1C Case: Printed Circuit Board Design

(b)(6)
DATE: AUG 1 ~ 2015 
INRE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location , and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~ .. Ron Rosenb~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, 
Nebraska Service Center, denied the immigrant visa petition. The petitioner filed a 
motion to reconsider the decision. The director granted the motion and reaffirmed the denial of the petition. The 
matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner filed Form I-140, Immigrant Petition for Alien Worker, on August 30, 2013, seeking to classify 
the beneficiary as an employment -based immigrant under section 203(b )(1)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The petitioner, 
a designer and manufacturer of printed circuit boards (PCBs), is an affiliate of the beneficiary's former 
employer located in Australia. It seeks to employ the beneficiary in the United States in the position of 
director and senior design manager. 
The director denied the petition on September 12, 2014, concluding that the petitioner had not established that 
the beneficiary was employed abroad or would be employed in the United States in a qualifying managerial or 
executive capacity. The petitioner filed a motion to reconsider, which the director dismissed on November 17, 
2014. 
On appeal, the petitioner submits a brief and copies of previously submitted materials. The petitioner asserts 
that it has established that the beneficiary's duties are primarily managerial and that the beneficiary's previous 
duties with the foreign entity were "borderline executive in nature." 
I. Law 
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 the alien 
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 only to those executives and managers who have 
previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, and who 
are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a beneficiary 
under section 203(b)(1)(C) of the Act as a multinational executive or manager. The regulation at 8 C.P.R. § 
204.50)(5) states: 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
No labor certification is required for this classification; however, 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 letter 
must clearly describe the duties to be performed by the alien. 
Section 10l(a)(44) of the Act, 8 U.S.C. § 110l(a)(44), provides: 
(A) The term "managerial capacity" means 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. ' 
(B) The term "executive capacity" means 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 decisioncmaking; and 
(iv) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Finally, 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 101(a)(44)(C) of the Act. 
II. Issues on Appeal 
At issue in this proceeding is whether the petitioner has established that the beneficiary was employed abroad, 
and would be employed in the United States, in a qualifying managerial or executive capacity. 
A. Facts 
1. Managerial or Executive Capacity 
In a letter dated May 22, 2013, submitted in support of the Form I-140, the petitioner provided the following 
description of the position offered to the beneficiary: 
In this key managerial position, this Director, Senior Design Manager will be responsible for 
managing the support and servicing of the Design Department, including the professional 
design team .... He will use his many years of experience with [the company's] protocols 
and design policies to manage the Design Team and set up and design the US Company's 
Printed Circuit Board specifications and product capabilities. The Director, Senior Design 
Manager will also be responsible for managing and delegating day-to-day activities of the 
Design team, which includes formulating, developing and implementing new design 
procedures with significant discretion in his day-to-day decision making. In this managerial 
position, he will also be responsible for overseeing the professional and timely solution of 
each service inquiry according to customer specifications. In this position, the Director, 
Senior Design Manager, will have the authority to recommend the hiring and firing of team 
member[ s] and will also establish the Company's goals and policies for the design 
department. 
The petitioner asserted that, while employed overseas by the petitioner's affiliate, the beneficiary "performed 
the same managerial duties described above" and held the same title of "Director, Senior Design Manager." 
The petitioner also provided an "Employment Verification Letter" signed by on behalf of its 
Australian affiliate. provided a job description for the beneficiary's employment with the foreign 
entity which mirrors that provided in the petitioner's letter describing his proposed U.S. duties. Therefore, the 
petitioner did not significantly distinguish between the beneficiary's past duties abroad and his intended 
duties in the United States. 
The petitioner provided its U.S. organizational chart dated November 2012, which showed that the following 
individuals and groups reported directly to the petitioner's Vice President and General Manager: 
(b)(6)
Page 5 
Director of Program Management/Quality Rep 
Engineering Manager 
Production Manager 
Purchasing Manager 
Design Director of Engineering (the beneficiary) 
Layout Design Team 
NON-PRECEDENT DECISION 
The chart indicated that the Project Management Team and Quality Manager reported to the Director of 
Program Management/Quality Rep. The chart did not show that anyone else at the same level, including the 
beneficiary, had subordinate employees. The chart showed that the Layout Design Team reported directly to 
the Vice President/General Manager, not to the beneficiary. The petitioner did not specify the size of the 
Layout Design Team, either in the United States or abroad, and the petitioner did not provide job descriptions 
for the team members. 
On Form I-140, the petitioner claimed 54 employees. The petitioner's initial submission did not include an 
organizational chart for the foreign affiliate, and did not specify the number of its employees. The petitioner 
has since stated that, with one exception, "[a]ll of the employees [the beneficiary] managed in Australia 
continue to work under his direction in the U.S." Subsequent payroll documents show that the petitioning 
U.S. entity now has 65 employees. 
The director issued a request for evidence (RFE) on May 13, 2014, stating that the petitioner's initial 
submission was not sufficient to establish that the beneficiary has been, or will be, employed in a managerial 
capacity. The director instructed the petitioner to: specify the beneficiary's duties and the time spent on each; 
provide a list of employees in the beneficiary's "immediate division, department, or team," along with job 
descriptions and other information; and provide detailed organizational charts for both the petitioner and the 
foreign affiliate. 
In response, the petitioner submitted a July 28, 2014 letter from its president, who is also the co-
owner of both the U.S. and foreign entities. stated: 
[The beneficiary] was "in charge" of [the Australian] office for several years, working as not 
only the Senior Design Manager, but also as the primary manager for the office from June 
2000-June 2005. He then came to the U.S. in L-lA status to work as our Design Manager 
from June 2005-December 2008. Because our Australian office was the primary "Design 
Headquarters" at that time, we transferred [the beneficiary] back to Australia in December 
2008, so that he could resume his leadership role there, and he assumed the title of Director, 
Senior Design Manager. Over the last several years, as our design needs continued to grow, 
we brought most of our design team from Australia and China to the U.S. 
Therefore, the position in Australia and the position in the U.S. are virtually the same, with 
the exception of the PCB Library Administration Services in Australia. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
letter included separate charts showing the beneficiary's duties abroad and in the United States, 
but the two charts are identical, each containing the following information (with some technical details 
omitted): 
Duties Time Spent 
Manage the support and servicing of the Design Department, including the 10% 
professional design team .... 
Manage the design engineering team and oversee the implementation of [the 5% 
company's 1 protocols and design policies. 
Manage and delegate day-to-day activities of the Design Team, which 5% 
includes formulating, developing and implementing new design procedures 
with significant discretion in day-to-day decision makiJ!g. 
Manage engineering design protocols for Sustaining Design Services, 5% 
including Managed obsolescence (MO); Component Engineering; 
Component consolidation and cost reduction; Feasibility Studies; Redesign . 
. 
. ; and Project Management: Engineering, Layout, Procurement, Prototype, 
Production, Documentation, and Scheduling. 
Oversee the provision of PCB Layout design engineering services with a 20% 
strategic focus on Medium to High Complexity; Advanced constraints 
(timing, noise, power, thermal, manufacturability); and Aggressive schedule 
and resource scalability requirements. 
Oversee and direct the proper design engineering 
implementation of PCB 10% 
technologies ... , Mixed technologies and Manufacturing. 
Provide guidance to engineering designers in the Company's utilization of 5% 
PCB design tools .... 
Oversee and manage Company's professional "On-Time Delivery" design 10% 
engineering protocol which includes strong project management skills, 
multiple resource planning and utilization, daily communication of schedule 
progression, web meetings to review milestones, scalability for multi -board 
projects, and innovative compensation plan rewards for on time 
performance. 
Manage and assess the design engineering team's performance for each 5% 
customer service inquiry and determine best strategy to meet customer 
specifications. 
Oversee the implementation of RFQ ("Requests for Quote") policies .... 15% 
Assess the professional performance of a design engineering team and 5% 
recommend the hiring and firing of team members. 
Establish the Company's goals and policies for the Design Engineering 5% 
Department. 
The petitioner submitted also submitted a job description on company letterhead for the Director, Senior 
Design Manager position, which listed the following details: 
(b)(6)
Page 7 
NON-PRECEDENT DECISION 
Accountability: Director of PCB Layout is hired by and reports to President 
Job Summary: Responsible for managing PCB Layout & Library Departments 
Job Responsibilities: 
• Apply independence and creativity to drive projects. 
• Develop and manage a staff of internal and external resources of varying technical 
disciplines. 
• Provide technical sales support for new and potential customers. 
• Manage several projects concurrently by planning, setting schedules, and proactively 
communicating in-process progress to our customer. 
• Identify and resolve project issues as they arise. 
• Formulate
, develop, and implement design procedures to ensure quality, efficiency, and 
consistency. 
• Help grow existing business by effectively being customer advocate 
assetied that the beneficiary "directly managed 8 professional PCB Design Professionals" in 
Australia (seven "Sr. PCB Designers" and one "Sr. PCB Librarian"), most of whom now work with the 
beneficiary in the United States. (The "Sr. PCB Librarian" remained in Australia.) added that the 
beneficiary is also "training and overseeing the work of a Junior PCB Designer . ... He manages a staff of 8 
professional employees, who all either have a bachelor's level degree or the equivalent in years of education 
and/or progressive and directly-related work experience." 
The job responsibilities of a Senior PCB Layout Designer (which appears to be the same position identified 
elsewhere as "Sr. PCB Designer") are as follows: 
• Design printed circuit boards that meet or exceed our customer's mechanical, electrical 
and manufacturing requirements. 
• Design printed circuit boards to comply with the Optimum Designer's Handbook to 
ensure project consistency among all designers. 
• Meet or exceed customer's on-time delivery requirements by effectively planning needed 
resources and proactively communicating in-process progress to our customer. 
• Record all project hours daily on Optimum Time Tracker. 
• Identify and resolve project issues as they arise. 
• Help grow existing business by effectively being customer advocate. 
The Junior PCB Layout Designer's job responsibilities include the last three items listed above, as well as: 
• Assist Sr. Designers in designing printed circuit boards that meet or exceed our 
customer 's mechanical, electrical and manufacturing requirem~nts. 
• Learn all aspects of Optimum Designers Handbook to ensure project consistency among 
all designers. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
The job responsibilities of the Senior PCB Librarian include the last three responsibilities listed for a Senior 
PCB Layout Designer, as well as the following: 
• Create and check schematic logic symbols based on our customer's tool, quality and 
delivery requirements. 
• Create and check PCB footprint land patterns based on our customer's tool, quality and 
delivery requirements. 
• Database entry of parametric value attributes per customer's tool and quality 
reg uiremen ts. 
The job descriptions indicate that all of the jobs described above, including the beneficiary's, require a "BA or 
BS degree or an AA degree with four years of experience." One of the petitioner's designers has no academic 
degree, and neither does the Senior PCB Librarian in Australia. Three of the designers hold associate's 
degrees, either in electronics or in mechanical drafting. A fifth designer holds an unspecified "Diploma in 
Electrical Design," while a sixth has an unspecified "Degree in Applied Computing." Only two individuals 
hold degrees that the petitioner has identified as a baccalaureate, and the record shows that the petitioner hired 
those workers before they earned their respective degrees. Specifically, a Senior PCB Designer began 
working for the petitioner in 1988, before he earned the degree in 1990. An individual identified as a Junior 
PCB Designer earned a bachelor's degree in literature in 2014, after the petitioner hired him in 2012. 
A new organizational chart submitted in response to the RFE shows seven departments that report to the Vice 
President, but the Design Management Team is not among them. Instead, that team, led by the beneficiary, 
reports directly to the President. The chart also names a "Design Manager" in addition to the beneficiary. 
The petitioner submitted no other information about this individual or his position at the company. 
The petitioner's 2013 payroll summary shows that it had 65 employees at that time, 12 of whom (including 
the beneficiary and the seven named Senior PCB Designers) worked in "Department 200." The document 
indicated that the beneficiary is the third highest-paid employee in the department, with a salary of 
$100,053.94. The Design Manager named in the second organization chart had the second highest salary, 
with $101,153.84. The department's highest paid employee was one of the Senior PCB Designers, who 
earned $115,000.08. Most of the other Senior PCB Designers had annual salary figures between $90,000 and 
S100,000; others earned less. 
The director denied the petition on September 1, 2014, finding that the petitioner had not established that the 
beneficiary's subordinates are professionals. The director also observed that the two organizational charts 
submitted for the petitioning entity do not match, as the newer chart "shows a different reporting structure 
from" the older one, and refers to a Design Manager whose position the petitioner has not described in the 
record. The director also determined 
that the petitioner had not supported its claim that the beneficiary "was 
also the highest-ranking manager in charge of overseeing the staffing, payroll, budgeting, and operations of 
the foreign entity." The director concluded: "The petitioner has not demonstrated that the beneficiary is a 
qualified first line manager and that he performs primarily qualifying managerial duties in the U.S. or 
abroad." 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
In its motion to reconsider, the petitioner asserted that it had fully complied with the RFE, and that it had 
submitted detailed information to show that the beneficiary has devoted "at least 90 - 95%" of his time to 
qualifying managerial functions. The petitioner maintained that changes in its organizational structure "are 
organic and consistent with the evidence provided." The petitioner stated that "[t]he Design Manager was not 
included in the 'Design 
Team' breakdown, because ... he exercises independent decision making," but he 
nevertheless "reports to the Beneficiary." The petitioner 
asserted that the beneficiary's subordinates qualify 
as professionals if we equate three years of experience to one year of university education. 
The director granted the petitioner's motion and affirmed the denial of the petition, finding that the petitioner 
had not overcome the stated grounds for denial. The director stated that the petitioner cited no support for its 
assertion that the beneficiary's subordinates are professionals, and that "[t]he record remains unclear on what 
the exact relationship is between the Director, Senior Design Manager and the Design Manager." The 
director stated that the petitioner's claimed reorganization after the petition's filing date cannot establish that 
the petition was approvable at the time of filing. The director also stated that the petitioner did not submit an 
organizational chart for the foreign entity, and therefore the record lacks material evidence needed to 
determine eligibility with respect to the beneficiary's foreign employment. 
On appeal, the petitioner states that the director incorrectly concluded that the beneficiary's positions, both 
abroad and in the United States, were not managerial in nature. The petitioner states that the director also 
erred in finding that the beneficiary's subordinates are not professionals. 
Upon review, and for the reasons stated below, we find that the petitioner has not established that the 
beneficiary was employed abroad or will be employed in the United States in a qualifying managerial or 
executive capacity. 
B. Analysis 
As indicated above, the two primary issues to be addressed in this proceeding are whether the petitioner 
provided sufficient evidence to establish that the beneficiary was employed abroad and would be employed by 
the petitioning entity in a qualifying managerial or executive capacity. In general, when examining the 
executive or managerial capacity of a given position, we review the totality of the record, starting first with 
the description of the beneficiary's proposed job duties with the petitioning entity. See 8 C.P.R.§ 204.50)(5). 
Published case law has determined that the duties themselves will reveal the true nature of the beneficiary's 
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). We then consider the beneficiary's job description in the context of the petitioner's 
organizational structure, the duties of the beneficiary's subordinates, and any other relevant factors that may 
contribute to a comprehensive understanding of the beneficiary's actual duties and role within the 
organization. 
The petitioner's claim that the beneficiary has been and will be employed in a qualifying managerial capacity 
is based on a claim that the Senior Design Manager, both in the United States and in Australia, supervises a 
staff of subordinate professionals. The majority of the beneficiary's stated duties reference his oversight, 
supervision and assessment of subordinate staff in the design department 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
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, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). 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." Section 
10l(a)( 44)(A)(iv) of the Act; 204.5G)( 4)(i). 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. 8 C.F.R. § 204.5(j)(2). 
Although the beneficiary is not required to supervise personnel, if the petitioner claims that the beneficiary's 
duties involve supervising employees, then the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See § 101(a)( 44)(A)(ii) of the Act. A managerial or executive 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. See Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm'r 1988). 
The petitioner has claimed that the beneficiary managed essentially the same team of workers both in 
Australia and in the United States, and that these individuals "all either have a bachelor's level degree or the 
equivalent in years of education and/or progressive and directly-related work experience." 
In evaluating 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. 
Section 10l(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 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." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817, 818 (Comm'r 1988); Matter of Ling, 13 I&N Dec. 35, 36 (R.C. 
1968); Maiter of Shin, 11 I&N Dec. 686, 687-8 (D.D. 1966). 
Therefore, we must focus on the level of education required by the position, rather than the degree held by a 
particular subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. An employee may hold a degree that the position does not require. The hiring of employees 
without a bachelor's degree, on the other hand, tends to demonstrate that the position does not require a 
bachelor's degree. In this instance, none of the petitioner's PCB Designers, Senior or Junior, held bachelor's 
degrees when the petitioner (or the foreign entity) hired them and almost all of them still lack such degrees. 
Further, the petitioner's own stated minimum requirement for all of these positions, including the 
beneficiary's, is an associate's degree plus four years of experience. Based on the evidence submitted, the 
evidence of record does not establish that the petitioner requires a bachelor's degree or its equivalent as a 
minimum hiring requirement for any position on its PCB layout design team. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
The petitioner states that the director should not have overlooked "USCIS' well-established standard of 
equating 3 years of work experience to 1 year of academic accomplishment." The petitioner states: "the 
Reviewing Officer must look to 8 C.F.R. § 214.2(h)( 4)(iii)(D)(5) which clearly establishes this standard of 
review when considering whether or not an individual is eligible for an H-lB as a professional worker." This 
proceeding is not a nonimmigrant petition, to determine whether the beneficiary's subordinates qualify for H­
lB nonimmigran t status. The H-lB regulations do not apply to immigrant petitions for multinational 
managers and executives, and the petitioner does not explain why we should adhere to that standard rather 
than the statutory definition of a professional at section 101(a)(32) of the Act and the case law cited above. 
The petitioner cites no authority that permits, let alone requires, USCIS to rely on the H-1B standard in this 
matter. Furthermore, the cited regulation concerns eligibility for classification not as a "professional," but as 
a "specialty worker. " Those terms overlap to some extent, but they are not identical. 
For the reasons explained above, the petitioner has not established that the beneficiary has supervised, or will 
supervise, professionals in his position with the petitioning company. As the petitioner indicates that many of 
the beneficiary 's duties involve his oversight and supervision of non-professional employees, the petitioner 
has not established how his duties qualify as primarily managerial in nature. 
The director also noted several unresolved deficiencies with respect to the petitioner's organizational charts. 
The petitioner, on appeal, contests the assertion that the petitioner did not submit an organizational chart for 
the foreign entity. The petitioner cites Exhibit 10, submitted in response to the RFE. That exhibit, however , 
is not an organizational chart. It is, rather, a list, in chart form, of the beneficiary's "Supervised Professional 
Employees in Australia and China," along with a similar list of U.S. employees and the job descriptions 
outhned elsewhere in this decision. The list does not establish the foreign entity's overall corporate structure 
at the time of the beneficiary's employment there, and the petitioner has not overcome this omission on 
appeal. 
With respect to the petit ioner's submission of two different organizational charts for the U.S. entity, counsel 
observes that the organizational chart submitted with Form I-140 was dated November 1, 2012, almost 10 
months before the filing of the petition on August 30, 2013. Counsel maintains that the organization al 
changes ii1 question occurred before the filing date , and therefore "[t]he RFE [response] contained an updated 
organization chart that was valid at the time of filing" (emphasis in original). No official of the petitioning 
entity makes this claim. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); 
Matter of Ramire z-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The organizational chart submitted in 
response to the RFE is dated June 12, 2014, more than nine months after the filing date. 
Regarding the relative dates of the organizational charts, counsel states: "This clarification was provided in 
the RFE response and in the Petitioner's Motion to Reconsider." In the RFE response, both counsel and 
referred to the submission of a new chart, but they did not state the effective date of that chart or claim 
that the 2012 chart was already outdated when the petitioner filed the petition in August 2013. 
lt is correct that the motion to reconsider included the assertion that "[t]he company had changed its 
organization," but this assertion came once again from counsel, with no supporting statement or evidence 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
from 
the petitioner. The dates on the two organizational charts do not establish or imply that the change in 
the petitioner's organizational structure occurred before the filing date (which would occasion the question of 
why the petitioner knowingly submitted outdated evidence that no longer accurately described the company's 
structure). 
The material differences between the two organizational charts are significant. The first showed that the 
beneficiary reported to the Vice President of the petitioning entity, as did the Layout Design Team. The chart 
did not identify the position of Design Manager. The new chart has the Layout Design Team reporting to the 
beneficiary and the Design Manager, who, in turn, report directly to the President. This substantial change in 
management structure raises unanswered questions, and the petitioner (through counsel) does not resolve the 
issue by claiming, on appeal, that the petitioner originally submitted a chart that was already outdated at the 
time. The petition must be approvable at the time of filing, and must remain approvable throughout 
adjudication. See 8 C.P.R. § 103.2(b)(l). Subsequent alterations to the petitioner's actual or claimed 
management structure cannot cause a previously unapprovable petition to be approvable. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998); Mqtter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 
1971). 
The petitioner has not overcome the issue described above, or addressed the director's finding that "[t]he 
record remains unclear on what the exact relationship is between the Director, Senior Design Manager and the 
Design Manager." The petitioner's initial submission did not mention the latter employee at all, although he 
may have been part of the Layout Design Team that existed separately from the beneficiary on the 2012 
version of the organizational chart. The lack of information about the Design Manager is not an insignificant 
omission; the record does not reveal to what extent the Design Manager, rather than the beneficiary, controls 
and oversees the Layout Design Team. Counsel has claimed that "the Beneficiary oversees the work of the 
Design Manager." By asserting that the 2014 organizational chart was already in effect as of the filing date, 
counsel effectively contends that the beneficiary already oversaw the work of the Design Manager as of the 
petition's filing date. It remains, nevertheless, that the petitioner's initial filing did not mention the Design 
Manager at all, and the petitioner has not submitted further information or evidence about that employee after 
the director raised concerns about the issue in two separate notices. 
Furthermo~e, the assertion that the beneficiary and the Design Manager shared oversight and control of the 
Layout Design Team in some undefined fashion is inconsistent with RFE response statement, in 
which he indicated thatthe beneficiary "is solely responsible for the performance of the Design Team." That 
statement implies that the Design Manager has no such responsibility. 
The petitioner, on appeal, maintains that it has established eligibility by a preponderance of the evidence. The 
inconsistencies and omissions discussed above, however, preclude that finding. Doubt cast on any aspect of 
the petitioner's proof may 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. 582, 591 (BIA 1988). It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and 
attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where 
the truth, in fact, lies, will not suffice. !d. at 582, 591-92. 
(b)(6)
NON-PRECEDENT DECISION 
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Accordingly, we find that the petitioner failed to provide reliable, probative evidence sufficient to establish 
that the beneficiary was employed abroad, or will be employed in the United States, in a qualifying 
managerial or executive capacity. For this reason, the appeal will be dismissed. 
ill. Conclusion 
We will dismiss the appeal for the above stated reasons. In visa petition proceedings, it is the petitioner's burden 
to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.