dismissed L-1A Case: Childcare

U.S. Citizenship 
and Immigration 
Services 
In Re: 9732029 
Appeal of California Service Center Decision 
Form 1-129, Petition for an L-lA Manager or Executive 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG . 31, 2020 
The Petitioner, which operates 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 the Beneficiary would be employed in an executive capacity under the 
extended petition. 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, the Petitioner has not met that burden. 
Accordingly, we will dismiss the appeal. 
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 sole issue to be addressed is whether the Petitioner established it will employ the Beneficiary 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; 
1 The Petitioner does not claim that the Beneficiary would be employed in a managerial capacity as defined at section 
101(a)(44)(A) of the Act. 
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. 
To be eligible for L-1A nonimmigrant visa classification as an executive, the Petitioner must show 
that the Beneficiary will perform the high-level responsibilities set forth in the statutory definition at 
section 101(a)(44)(B)(i)-(iv) of the Act. If the record does not establish that the offered position meets 
all four of these elements, we cannot conclude that it is a qualifying executive position. 
If the Petitioner establishes that the offered position meets all elements set forth in the statutory 
definition, 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). In determining whether a given beneficiary's 
duties will be primarily executive, we consider the petitioner's description of the job duties, the 
company's organizational structure, the duties of a 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 a beneficiary's actual duties and 
role in a business. 
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 letter submitted at the time of filing, the Petitioner provided a description of the Beneficiary's 
position as president that included 20 duties. The Petitioner indicated that her activities include 
planning and decision making for current and future investments, developing and evaluating 
operational policies as needed, approving marketing and advertising strategies, controlling all financial 
aspects of the company, and monitoring compliance with state rules and ensuring the renewal of 
licenses, certification and insurance. The Petitioner noted that she reviews software communications 
systems, escalated parent issues, management of collections and revenue, expenses and supplier 
contracts, new equipment orders, payroll, and financial and legal issues. With respect to the daycare 
center's staff, the Petitioner stated that the Beneficiary develops training protocols, presides over 
monthly staff meetings and quarterly parent meetings, ensures that the center director and staff 
participate in workshops and seminar. Finally, some of the stated duties related to the Petitioner's 
possible expansion and related planning, such as investigating new locations and determining capital 
requirements. 
In a request for evidence (RFE), the Director advised that the description was too general and appeared 
to include a combination of qualifying duties along with tasks that are operational and administrative 
tasks necessary to operate the Petitioner's day care center and pre-school. We agree with this 
assessment of the initial description because, while it indicates the Beneficiary's authority to develop 
the company's policies and her general oversight of the company, it is too broad to establish the nature 
of her day-to-day activities and does not demonstrate how she divides her time between higher-level 
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duties and non-executive tasks. 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. 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). 
The Director instructed the Petitioner to provide a more detailed description of her specific executive 
duties and information regarding the amount of time she is expected to spend on each task. 
In response, the Petitioner stated that the Beneficiary's "typical daily allocation of time" is as follows: 
I Observe student drop off (1%) 
I Review financial report (5%) 
I Read and respond [to] emails. Read Education materials, news (10%) 
I Meeting with school director (15%) 
I Meet with school director and assistant director (10%) 
I Walk through facilities (5%) 
I Office time/troubleshoot problems (10%) 
I Quick walk through dining area (1 %) 
I Working lunch (7%) 
I Meetings with social media management (2%) 
I Teleconference with web site manager (1 %) 
I Working meetings to obtain permits and buildout for new space (12%) 
I Observe student drop off (1%) 
I On a weekly rotational basis: Meal, liability and payroll management (5%) 
I Staff meetings [] with parent company (5%) 
I Meeting with new venue location manager (realtor) (5%) 
I Executive open door policy meetings (5%) 
Some of these tasks are inherently operational or administrative, while others are so vaguely described 
that the Petitioner has not shown them to be at an executive level. This breakdown of duties therefore 
did not provide the requested detailed and specific description of how the Beneficiary typically 
allocates her time. For example, we cannot determine that responding to emails, reading news, having 
"office time," walking through the Petitioner's facility, and holding "open door policy meetings" are 
inherently executive tasks. Further, although the Petitioner indicates that the Beneficiary spends a 
significant portion of her time on duties related to the company's planned expansion, the record does 
not establish that the company had reached the point where it was obtaining permits for a new space 
at the time of filing, nor does the record support a finding that she was meeting with a realtor on a 
daily basis. 
The Petitioner also provided a four-page listing of the Beneficiary's activities and indicated how they 
fall under the four prongs of the statutory definition of executive capacity at section 101(a)(44)(B)(i)­
(iv) of the Act. While lengthy, this list was repetitive, resembled the initial position description 
provided by the Petitioner, and was also not responsive to the Director's request that the Petitioner 
clearly describe the Beneficiary's duties and the amount of time she al locates to specific tasks. Instead, 
the Petitioner focused on explaining the scope of her authority. It provided a long list of policies and 
decisions that the Beneficiary had made, most of them related to the daily operation of the day care 
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center. However, the Petitioner had been operating the center for over three years and it has not 
explained why it would require an executive to spend a significant portion of her time on policy 
decisions for nearly every aspect of operations on an ongoing day-to-day basis. 
The Petitioner added that the Beneficiary "instituted the outsourcing of most non educational core 
business tasks," such as "administrative services, bookkeeping, human resources, financial reporting, 
payroll, social media management, tax preparation and website management." The Petitioner 
indicated 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 also 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; deciding the location of any new campus, and meeting with parents who have requested 
waivers of school policies. 
The Beneficiary's authority to make high-level decisions for the petitioning entity is not in dispute. 
Such authority, however, is only part of the definition of executive capacity. Here, none of the 
submitted position descriptions sufficiently detail the nature of the Beneficiary's specific day-to-day 
tasks and the amount of time she allocates to qualifying duties. As such, the Petitioner has not shown 
that the Beneficiary's duties are primarily those of an executive. The Petitioner has placed 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 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 
101(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 
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. As noted, we also must consider 
the submitted position descriptions within the context of the Petitioner's business, which requires a 
review of the nature of the business, its structure, and its staffing levels. 
B. Staffing and Organizational Structure 
The Petitioner indicated on the Form 1-129, Petition for a Nonimmigrant that it had 14 employees in 
July 2019. 
The Petitioner's undated organizational chart submitted at the time of filing included 13 employees 
and showed that the Beneficiary's only immediate subordinate is the school director. The director is 
depicted as supervising a "director assistant," who, in turn, supervises eight teachers and two teacher 
aides. An accompanying staff list identified the same employees but indicated that six of them are 
teachers and four are aides. 
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The evidence submitted in the Petitioner's October 2019 response to the Director's RFE indicated that 
five members of the teaching staff who were included on the initial organizational chart had terminated 
their employment in June 2019, prior to the filing of the petition. Based on this information, the initial 
organizational chart did not accurately reflect the Petitioner's staffing at the time of filing. 
The Petitioner submitted a new organizational chart dated August 2019 which identifies the 
Beneficiary, the school director, director assistant, seven teachers, three teacher aides, and a cleaning 
and maintenance employee. We note that one teacher I I one teacher aidel I, and the 
cleaning employee I I do not appear on the Petitioner's ADP payroll summary for August 
2019, and the Petitioner has not corroborated its employment of these workers. 
We further observe that the initial chart indicated that the Petitioner has six classrooms, while the new 
chart included only four class levels and did not include an infant room or infant room staff. However, 
all other evidence suggests that the Petitioner's day care center provides care for infants and continues 
to require staff to care for the center's youngest children. In addition, the Petitioner indicates that it is 
fully enrolled with 90 students and it operates in a highly regulated industry that has mandatory 
minimum adult-to-child ratios that must be met to maintain licensing. Given some of the apparent 
inconsistencies noted in the staffing levels and number of classrooms, the Petitioner has not established 
that it was fully staffed with teachers and aides during its operating hours (7 a.m. to 6 p.m. on 
weekdays) at the time of filing and remains fully staffed. This raises questions as to whether the 
director and director assistant are required to spend time in classrooms in addition to performing the 
duties the Petitioner attributes to their positions. 
In fact, the Petitioner's initial evidence included a "2018-19 VPK School Year Monitoring Report" 
from May 2019, prepared by the Early Learning Coalition of,___ _____ ___, which summarizes 
this entit 's monitoring visit at the Petitioner's pre-kindergarten classroom. According to this r~port,
1 __ ---.-_ ___,was "in the role of Director as stated on Form OEL-VPK 10" but it also states tha 
was "in the role of teacher assistant as stated on Form OEL-VPK11A." The Petitioner did not 
~d-is-c-lo~se in its supporting statements on or its organizational chart thaU l(the school director) 
serves in this dual role, nor did it clarify the information revealed by the monitoring report or explain 
ho~ !divides her time. This omission is material since the Petitioner states that the 
Beneficiary directs the management of the company through the director and director assistant. 
For example, the Petitioner submitted a lengthy position description for the director indicating that she 
has been assigned 42 wide-ranging tasks that include developing programs to ensure adherence to 
government codes, curriculum planning, student evaluation planning, developing admission goals and 
strategies, working closely with "the finances department," developing marketing campaigns, 
directing all education, nutrition and parent involvement programs, planning and overseeing school 
logistics programs, overseeing staff training, recruiting new staff, holding teacher meetings, directing 
equipment maintenance, maintaining inventory, etc. If the school director is spending a significant 
portion of her hours in the pre-Kindergarten classroom, it is unclear to what extent she is available to 
perform the higher-level duties the Petitioner attributes to her. 
Given the evidence indicating that the school director is required to perform teaching duties, it is 
reasonable to question whether the director assistant may also have additional classroom-related 
responsibilities. The director assistant's job description includes a number of vague duties such as 
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"manages and oversees functional areas of the institution," "actively participates in institution 
planning, development and team building," "monitors student satisfaction," "establish policies," 
developing and implementing "admissions goals and strategies," developing "educational programs 
and standards," and working closely with "the human resources department" and "the head of each 
educational department as well as the financial aid team." The Petitioner does not otherwise claim to 
have a human resources department, multiple educational departments, or a financial aid team. 
Overall, we cannot determine whether the job descriptions submitted for the director and director's 
assistant completely and accurately reflect the full scope and range of duties performed by these 
employees. On appeal, the Petitioner submits an updated chart dated "October 2019" which adds a 
tier of "teacher leaders" above the teaching staff. However, the total number of teaching staff 
(including leaders, teachers and aides) is reduced to nine, with one aide and one teacher no longer 
included. The new chart also indicates that the individual previously identified as the cleaning staff is 
a teacher aide, while one of the recently-hired teachers is now the company's financial manager. The 
evidence must substantiate that the duties of a beneficiary and his or her subordinates correspond to 
their placement in an organization's structural hierarchy; adding tiers of subordinate employees with 
senior or supervisory job titles is not probative and will not establish that an organization is sufficiently 
complex to support an executive position. Further, 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)(1). 
The organizational charts have consistently identified a number of contractors as the Beneficiary's 
direct subordinates. The Petitioner claims that these external companies act as "managers" for non­
core functions such as finance and administration (accounting/tax, payroll, insurance), nutrition 
(meals/catering), marketing (social media and web design), and "new venue location management" (a 
real estate broker). The Petitioner, however, has not shown that these contractors work exclusively or 
extensively for the petitioning entity, despite providing position descriptions suggesting that they each 
perform a day-to-day role in the company. For example, the Petitioner indicates that the social media 
management company "sel Is classifieds and advertising space for print or media pub I ications," 
prepares ad layouts, creates marketing campaign, develops and implements an internal marketing plan, 
plans and delivers campaigns, presents and negotiates rates, among other duties. However, the 
supporting evidence demonstrates that the Petitioner pays the social media management company only 
$50 per month. The Petitioner assigns similarly broad duties to the web management company, but 
the only supporting evidence related to that contractor is a proposal to create the Petitioner's website 
for a fee of $600. 
Similarly, while the Petitioner submitted invoices showing that it pays a monthly $300 fee to an 
accounting firm I I, it has not provided its services agreement outlining the nature and scope 
of services the firm is contracted to provide. Without such evidence, we cannot determine whether the 
"Accounting and Tax" job description submitted by the Petitioner accurately reflects the external 
accountants' responsibilities. The evidence reflects that I I prepared the Petitioner's quarterly 
federal tax returns and annual income tax returns. However, the submitted job description submitted 
for this firm includes 39 discrete duties and would appear to require daily services to the petitioning 
company, the provision of which is not adequately supported in the record. 
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Overall, although the Petitioner claims that its contractors serve as "function managers," we note that 
the performance of incidental, one-time, or automated services do not constitute management of the 
Petitioner's functions. The Petitioner has not shown that the Beneficiary exercises executive-level 
control over the work performed by the various contractors, or that the contractors provide the level 
of services indicated in the submitted position descriptions. 
On appeal, the Petitioner submits a new business plan and indicates that its existing day care will be 
expanding into an adjacent space, with plans to increase enrollment by 50% and increase its staffing 
levels accordingly. The Petitioner also emphasizes that the Beneficiary has successfully directed the 
business as reflected by the company's full enrollment numbers and waitlist. However, as noted, the 
fact that the Beneficiary will manage or direct a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning 
of section 101(a)(44) of the Act. To show that a beneficiary will "direct the management" of an 
organization, a petitioner must show how the organization is managed and demonstrate that the 
beneficiary primarily focuses on its broad goals and policies, rather than the day-to-day operations of 
such. 
Here, the Petitioner's description of the Beneficiary's duties did not provide the requested level of 
detai I with respect to how she allocates her time to specific tasks. Further, although the Petitioner 
submitted an organizational chart showing contractors as subordinate managers and several tiers of 
subordinate employees, the evidence indicates that the contractors are not acting as managers and the 
Beneficiary's direct subordinate is also providing services as an assistant teacher. Finally, we noted 
some inconsistencies when comparing the Petitioner's payroll evidence and organizational charts 
which raises questions as to whether the company has a sufficient number of teachers and aides to 
maintain an appropriate adult-child ratio during its operating hours. For all of these reasons, the 
Petitioner has not established that the Beneficiary is primarily focused on the broad goals and policies, 
or that the staff in place at the time of filing was sufficient to relieve her from involvement in the day­
to-day operations of the business, such that she would be performing primarily executive-level tasks. 
Based on the deficiencies discussed above, the Petitioner has not established that it will employ the 
Beneficiary in an executive capacity. 
ORDER: The appeal is dismissed. 
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