dismissed L-1A Case: Childcare

U.S. Citizenship 
and Immigration 
Services 
In Re: 8419434 
Appeal of California Service Center Decision 
Form 1-129, Petition for L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL Y 7, 2020 
The Petitioner, operating as a childcare center, seeks to continue the Beneficiary's temporary 
employment as its president under the L-lA nonimmigrant classification for intracompany transferees 
who are coming to be employed in the United States in a managerial or executive capacity. 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). 
The Director of the California Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that: (1) the Beneficiary was employed abroad in a managerial or executive 
capacity; and (2) the Beneficiary's proposed position would be in a managerial or executive capacity. 
The matter is before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal because 
the Petitioner did not establish the Beneficiary's position in the United States would be in a managerial 
or executive capacity. Since the identified basis for denial is dispositive of the Petitioner's appeal, we 
decline to reach and hereby reserve the Petitioner's appellate arguments regarding the Beneficiary's 
employment abroad in a managerial or executive capacity. See INS v. Bagamasbad, 429 U.S. 24, 25 
(1976) ("courts and agencies are not required to make findings on issues the decision of which is 
unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary in a managerial or executive capacity, or in a position requiring 
specialized knowledge for one continuous year within three years preceding the beneficiary's 
application for admission into the United States. 8 C.F.R. § 214.2(1)(1). The prospective U.S. 
employer must also be a qualifying organization that seeks to employ a beneficiary in a managerial or 
executive capacity. 8 C.F.R. § 214.2(1)(3)(i). 
II. U.S. EMPLOYMENT IN AN EXECUTIVE CAPACITY 
The primary issue to be addressed in this discussion is whether the Petitioner provided sufficient 
evidence to support its claim that the Beneficiary's position with the U.S. entity would be in an 
executive capacity. 1 
"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 managerial capacity, the Petitioner must first show that the 
Beneficiary will perform certain high-level responsibilities. Section 101(a)(44)(A) of the Act. The 
Petitioner must also prove that the Beneficiary will be 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). 
The description of the job duties must clearly describe the duties performed by the Beneficiary and 
indicate whether such duties are in a managerial or an executive capacity. See 8 C.F.R. 
§ 214.2(1)(3)(ii). Beyond the required description of the job duties, we examine the employing 
company's organizational structure, the duties of the Beneficiary's subordinate employees, the 
presence of other employees to relieve the Beneficiary from performing operational duties, the nature 
of the business, and any other factors that will contribute to understanding the 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. Job Duties 
First, we will discuss the duties to be performed by the Beneficiary. We note that the actual duties 
themselves 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). 
In a supporting cover letter, the Petitioner stated that the Beneficiary will hold the top-most position 
with the organization, hold a "key leadership role" and be responsible for the "ultimate success of the 
business" where she will provide "leadership and guidance" in terms of strategy, business plans, and 
corporate policies. The Petitioner also provided a job duty breakdown, which allocates 60% of the 
Beneficiary's time to two categories of broadly stated duties and responsibilities. Namely, the 
Petitioner allocated 40% of the Beneficiary's time to "strategic planning, direction and management" 
and stated that this category will involve playing a "key role" and "providing leadership to the 
1 The Petitioner does not claim that the Beneficiary would be employed in a managerial capacity. Therefore, we will limit 
our discussion to the Petitioner's claim that the Beneficiary will be employed in an executive capacity. 
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company," working with the vice president to create a budget and grow revenue, "[ c ]ontinuously 
evaluate expansion strategy," monitor the Petitioner's "services and programs" to ensure customer 
satisfaction, and review staffreports to determine where change is necessary. Although these elements 
emphasize the Beneficiary's oversight and discretionary authority, they do not identify specific daily 
or weekly actions the Beneficiary would take to explain how she plans strategy and fulfills her 
responsibility to direct and manage a childcare center. 
The Petitioner allocated another 20% of the Beneficiary's time to establishing goals, policies, and 
investment strategies. However, this category was similarly comprised of vague statements that 
highlight the Beneficiary's discretionary authority with respect to the business, but do not explain 
precisely what steps the Beneficiary will take to direct the management of a childcare business. For 
instance, several components of this category merely paraphrase the general category description, 
focusing on the Beneficiary's role in establishing "organizational goals and policies" and directing 
and implementing policies and objectives. Such statements offer no insight about specific goals or 
policies or other directives instituted by the Beneficiary in the course of the company's daily operation. 
Likewise, vague statements about the Beneficiary's direction and coordination "budget activities to 
fond operations" and oversight of "economic, industrial, and corporate developments" also preclude 
a meaningful understanding about the Beneficiary's daily or weekly activities within the scope of the 
Petitioner's business operation. 
The Petitioner also included references to the Beneficiary's goal to maximize profits and investments 
in this category, claiming that the Beneficiary will "[i]nterpret data affecting investment programs" 
and review "financial publications" and information offered by "investment banking firms." 
However, the Petitioner did not list any profit maximizing measures the Beneficiary has or plans to 
implement, nor did it identify specific "investment programs" the Beneficiary has or will pursue or 
explain how "financial publications" and "investment banking firms" are relevant to the Petitioner's 
ability to achieve its financial objectives within the context of a business operation whose main activity 
is the operation of a childcare center. Further, although the Petitioner indicated that the Beneficiary 
would allocate 20% of her time to exercising discretionary authority over personnel by setting 
"performance standards" and "policies for staffing levels," it did not explain how this exercise of 
authority translates into tasks the Beneficiary would perform in the regular course of business. 
In a request for evidence (RFE), the Petitioner was notified that the job description offered in support 
of the petition was insufficient and did not demonstrate that the Beneficiary would perform primarily 
executive job duties. The Petitioner was therefore asked to supplement the record with more detailed 
information about the Beneficiary's typical executive job duties explaining how those duties fit the 
statutory definition of executive capacity. 
In response, the Petitioner did not provide the requested additional information about the Beneficiary's 
job duties and merely resubmitted the original job description reiterating the same vague claims about 
the Beneficiary's "key leadership role" in formulation of the Petitioner's policies and business 
strategies. The Petitioner now reiterates those same claims on appeal, again focusing on the 
Beneficiary's "leadership, guidance, and vision" in developing and implementing corporate policies 
and managing the Petitioner's budget and finances. The Petitioner also points to the Beneficiary's 
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majority ownership of the U.S. entity and highlights her autonomy in making decisions as a result of 
such ownership. 
However, the fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in an executive capacity within the meaning 
of section 101 (a)( 44)(B) of the Act. By statute, eligibility for this classification requires that the duties 
of a position be "primarily" executive in nature. Id. While the Beneficiary may exercise discretion 
over the Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, these elements alone are insufficient to establish that her actual duties 
would be primarily executive in nature. As such, we rely on specific information about a beneficiary's 
actual daily tasks as an important indication of whether their duties are primarily executive in nature; 
otherwise meeting the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
As discussed above, the Petitioner offered vague information about the Beneficiary's job duties 
focusing on her high level of discretionary authority over policies and business strategies, but listing 
no goals, strategies, or policies that the Beneficiary established. The Petitioner also neglected to 
specify plans or investment programs the Beneficiary plans to pursue or explain how the Beneficiary 
will meet the Petitioner's broadly stated financial objectives within the scope of a childcare business. 
Further, despite the Petitioner's references to investments and investment programs, the Petitioner did 
not identify any investments or clarify how an investment plan is relevant to the operation of a 
childcare business. In sum, the Petitioner provided broadly stated job description that focused on the 
Beneficiary's discretionary authority and made vague claims that did not readily fit the nature of the 
Petitioner's business. Moreover, the Petitioner's broad claims failed to disclose the specific actions 
the Beneficiary would take on a daily or weekly basis within the specific context of the business 
operation. As such, we cannot conclude that the Beneficiary's time would be primarily allocated to 
tasks of an executive nature. 
B. Staffing 
Next, we will address the Petitioner's staffing at the time of filing. As correctly stated on appeal, if 
staffing levels are used as a factor in determining whether an individual is acting in an executive 
capacity, the reasonable needs of the organization must be considered in light of the overall purpose 
and stage of development of the organization. See section 101 (a)( 44 )( C) of the Act. 
Although the Petitioner claimed 1 7 employees at the time of filing, it provided an organizational chart 
depicting a 19-person staff. The Beneficiary is positioned at the top-most level of the hierarchy and 
is depicted as overseeing the organization's vice president, who is shown as overseeing the childcare 
center director. The childcare center itself is divided into two identical halves, each comprised of an 
assistant director overseeing three lead teachers, three assistant teachers and a "teaching 
assistant/driver." Because the Beneficiary was the only employee whom the organizational chart 
identified by name, it is unclear which of the 19 positions were filled at the time of filing, particularly 
given that the Petitioner claimed 17, rather than 19, employees in the petition itself. The Petitioner 
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did not explain this ambiguity between the organizational chart and the number of employees it 
claimed at the time of filing. 
Furthermore, despite being issued an RFE, which instructed the Petitioner to provide an organizational 
chart containing employee names and job descriptions, the Petitioner did not comply with this request 
and instead offered wage documents that do not support either the number of employees claimed in 
the petition or the number of positions depicted in the organizational chart. Namely, the Petitioner 
provided a quarterly tax return and wage report for the 2019 first quarter claiming 13 and 14 
employees, respectively. The Petitioner did not offer an explanation as to why the wage report named 
14 employees, while the quarterly tax return indicated that the Petitioner had 13 employees during the 
same time period. The Petitioner also did not explain why it claimed 17 employees in the petition 
itself and offered an organizational chart depicting 19 positions, as neither the claim nor the 
organizational chart is consistent with the quarterly wage report or quarterly tax return. The Petitioner 
must resolve these discrepancies 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 points out that the Beneficiary took over its ownership in 2014, claiming that 
it is "relatively new" and that denying the petition without taking into account its "early stages" of 
operation and the nature of its business would be contrary to the statutory definition of executive 
capacity. Despite the Petitioner's claim, we cannot overlook the multiple evidentiary deficiencies, 
including the unresolved inconsistencies regarding the Petitioner's staffing composition at the time of 
filing and the lack of sufficient job descriptions for the Beneficiary and the rest of the Petitioner's 
staff Although the Petitioner is correct to point out that we must consider its reasonable needs, the 
record contains insufficient information as to what those needs were within the context of the 
company's phase of operation at the time of filing. 
Furthermore, the Petitioner's needs will not supersede the requirement that the Beneficiary must 
"primarily" perform duties in an executive capacity; the Petitioner cannot fulfill this requirement if it 
is not adequately staffed at the time of filing so that it can relieve the Beneficiary from having to spend 
her time primarily performing operational and administrative tasks. See section 101(a)(44)(B) of the 
Act. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in an executive capacity. See, e.g., section 
101(a)(44)(B) of the Act (requiring that one "primarily" perform the enumerated executive duties); 
Matter of Church Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). 
In light of the deficient evidence of the Petitioner's staffing and job duties, we are unable to gauge the 
extent to which the Petitioner was able to relieve the Beneficiary from having to spend her time 
primarily performing non-executive tasks at the time this petition was filed. Therefore, we cannot 
conclude that the Beneficiary would be employed in an executive capacity under an approved petition. 
ORDER: The appeal is dismissed. 
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