dismissed EB-1C Case: Child Care

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-S-A- INC . 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 8, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a day care center, seeks to pennanently employ the Beneficiary as its president under 
the first preference immigrant classification for multinational executives or managers. Immigration 
and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification 
allows a U.S. employer to pe1manently transfer a qualified foreign employee to the United States to work 
in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner will employ the Beneficiary in the United States in a managerial 
or executive capacity. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred by applying 
the requirements for a managerial capacity rather than an executive capacity. 
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, Immigrant 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. § 204.5(j)(3). 
Matter of K-S-A- Inc. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAP A CITY 
The Director found that the Petitioner did not establish that it will employ the Beneficiary in a 
managerial or executive capacity. The Petitioner asserts that it does not seek to employ the Beneficiary 
in a managerial capacity, and therefore the related requirements do not apply in this case. Therefore, 
we restrict our analysis to whether the Beneficiary will be employed in an executive capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary will be primarily engaged in executive 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. 
When examining the claimed executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 204.5(j)(5). Beyond the required description of the job duties, we 
examine the company's organizational structure, the duties of a beneficiary's subordinate employees, 
the presence of other employees to relieve a 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 a business. 
Accordingly, we will discuss evidence regarding the Beneficiary's job duties along with evidence of 
the nature of the Petitioner's business and its staffing levels. 
A. Duties 
The Petitioner stated that, while employed as an L-lA nonimmigrant, the Beneficiary has instituted 
several new policies at the petitioning entity, including these examples: 
• Inquiring into opening additional locations; 
• Launching a franchise; 
• "Adopting an e-commerce marketing strategy"; and 
• Enhancing the day care area. 
The Petitioner also stated that the Beneficiary "instituted the outsourcing of most non educational core 
business tasks," such as "administrative services, bookkeeping, human resources, financial reporting, 
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Matter of K-S-A- Inc. 
payroll, social media management, tax preparation and website management." The Petitioner stated 
that the Beneficiary directs the management of the organization by meeting with the school director 
and subcontractors and reviewing their reports, and by reviewing audit reports, personnel logs, and 
key performance indicators. The Petitioner asserted that the Beneficiary's wide latitude in 
discretionary decision making includes elements such as hiring and firing teachers; engaging the 
services of subcontractors and negotiating the terms of those contracts; approving school equipment 
and supplies; and meeting with parents who have requested waivers of school policies. 
The Petitioner has listed the tasks the Beneficiary performs on a typical day. These tasks include 
observing the student drop-off and pickup processes; walking through the facilities; reviewing emails 
and reports; and meeting with various employees and contractors. Some of these tasks are inherently 
operational or administrative; others are so vaguely described that the Petitioner has not shown them 
to be at an executive level. 
In the denial notice, the Director found that the Petitioner had not shown the Beneficiary's duties to 
be primarily qualifying. On appeal, the Petitioner maintains that "the Beneficiary influences decision­
making at the highest level of the company with respect to U.S. development and expansion." 
The Beneficiary's authority to make high-level decisions for the petitioning entity is not in dispute. 
Such authority, however, is only part of an executive capacity. The Petitioner has not shown that the 
Beneficiary's duties are primarily those of an executive. The Petitioner has placed particular emphasis 
on the Beneficiary's intention to expand the company into a franchise, but the Petitioner has not shown 
that these efforts have so far resulted in any significant expansion. The Petitioner documented a 
brokerage agreement relating to the potential purchase of additional properties, but has not shown that 
it operates at more than one location. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position. 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the 
goals and policies" of an organization or major component or function thereof Section 10l(a)(44)(B) 
of the Act. To show that a beneficiary will "direct the management" of an organization or a major 
component or function of that organization, a petitioner must show how the organization, major 
component, or function is managed and demonstrate that the beneficiary primarily focuses on its broad 
goals and policies, rather than the day-to-day operations of such. An individual will not be deemed 
an executive under the statute simply because they have an executive title or because they "direct" the 
organization, major component, or function as the owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility 
for classification as an intracompany transferee in an executive capacity within the meaning of section 
10l(a)(44)(B) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive nature. While the Beneficiary may exercise discretion over 
the Petitioner's day-to-day operations and possesses the requisite level of authority with respect to 
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Matter of K-S-A- Inc. 
discretionary decision-making, the position description alone is insufficient to establish that her actual 
duties, as of the date of filing, would be primarily executive in nature. 
B. Staffing 
By definition, an executive directs the management of the company, which implies that there must be 
some level of management for the executive to direct. The Petitioner has not shown that it has 
sufficient organizational complexity to warrant an executive position. 
The Petitioner's organizational chart showed that the Beneficiary's only immediate subordinate is the 
school director, who, in tum, supervises seven teachers and four teacher assistants. There is an 
assistant director, sometimes called the "director assistant," but that employee is also one of the 
teachers, indicating that her duties as assistant director are intermittent or incidental. Apart from the 
Beneficiary, the director, and the director's assistant, each of the Petitioner's employees earns less 
than $20,000 per year. The Beneficiary's authority over a first-line supervisor is not an executive 
level of authority; the Petitioner did not show that the school director's position is managerial. 
The Director requested job descriptions for the Petitioner's subordinates, but we do not find that 
information in the materials submitted prior to the denial of the petition. On appeal, the Petitioner 
submits a newly-created business plan, including job descriptions for the school director and assistant 
director. An identified third party prepared the business plan; it is not clear what resources the preparer 
used in compiling the job descriptions. 
We note that the new job description indicates that the director position requires a "Bachelor's degree 
in School Administration or equivalent working experience," and the assistant director position 
requires a bachelor's degree in education. The Petitioner has not shown that its current director and 
current assistant director hold those degrees; their previously described credentials include various 
short-term (4 to 10 hour) vocational courses. Also, the assistant director's job description does not 
include teaching duties, whereas several prior iterations of the organizational chart identified the 
assistant director as a toddler teacher. Therefore, the newly submitted business plan, from an outside 
source, does not appear to reliably reflect the duties of the Beneficiary's subordinates at the time the 
Petitioner filed the petition. Any recent revisions to the school's structure and staffing cannot 
retroactively establish that the Petitioner already met all eligibility requirements at the time of filing, 
as required by 8 C.F.R. § 103.2(b)(l). 
The Petitioner asserts that various contractors act as managers for non-core functions such as finances, 
payroll, and web design. The Petitioner, however, has not shown that these contractors work 
exclusively or extensively for the petitioning entity. Incidental, one-time, or automated services do 
not constitute management of the Petitioner's functions, and the Petitioner has not shown that the 
Beneficiary exercises executive-level control over the work performed by the various contractors. 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity. 
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Matter of K-S-A- Inc. 
III. CONCLUSION 
The appeal will be dismissed 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of K-S-A-Inc., ID# 4638483 (AAO Oct. 8, 2019) 
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