dismissed L-1A Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 13, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, which intends to operate a learning and language center, seeks to temporarily employ 
the Beneficiary as owner and general manager of its new office 1 under the L-lA nonimmigrant 
classification for intracompany transferees. Immigration and Nationality Act (the Act) 
section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-lA classification allows a corporation or 
other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the 
United States to work temporarily in a managerial or executive capacity. 
The Director of the California Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Beneficiary has been employed abroad in a managerial or executive 
capacity; and (2) the new office would support a managerial or executive position within one year. 
On appeal, the Petitioner contends that the Beneficiaiy has been employed abroad, and will be 
employed in the United States, in a managerial capacity based on his supervision of subordinate 
professional employees. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiaiy in a managerial or executive 
capacity 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)(3)(v)(B). In addition, the beneficiary must seek 
to enter the United States temporarily to continue rendering his or her services to the same employer 
or a subsidiary or affiliate thereof in a managerial or executive capacity. Id. 
The petitioner must submit evidence to demonstrate that the new office will be able to support a 
managerial or executive position within one year. This evidence must establish that the petitioner 
1 The term "new office" refers to an organization which has been doing business in the United States for less than one year. 
8 C.F.R. § 214.2(1)(1)(ii)(F). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C) allows a "new office" operation no more than 
one year within the date of approval of the petition to support an executive or managerial position. 
Matter of R-S- LLC 
secured sufficient physical premises to house its operation and disclose the proposed nature and scope 
of the entity, its organizational structure, its financial goals, and the size of the U.S. investment. See 
generally, 8 C.F.R. § 214.2(1)(3)(v). 
II. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The first issue to be addressed is whether the Petitioner established that its new office would support 
a managerial position within one year. The Petitioner does not claim that the Beneficiary would be 
employed in an executive capacity. 
"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. 
In the case of a new office petition, we review a beneficiary's proposed job duties as well as the 
petitioner's business and hiring plans and evidence that the business will grow sufficiently to support 
a beneficiary in the intended managerial or executive capacity. A petitioner has the burden to establish 
that it would realistically develop to the point where it would require the beneficiaiy to perform duties 
that are primarily managerial or executive in nature within one year. 
Accordingly, the totality of the evidence must be considered in analyzing whether the proposed 
managerial position is plausible considering a petitioner's anticipated staffing levels and stage of 
development within a one-year period. See 8 C.F.R. § 214.2(1)(3)(v)(C). 
A. Job Duties 
The Petitioner intends to operate a language and learning center offering individual tutoring and group 
instruction to elementary, middle, and high school students, as well as English and Spanish language 
classes to students of all ages. 
With its initial submission, the Petitioner did not provide a detailed description of the duties to be 
perfmmed by the Beneficiaiy, as required by 8 C.F.R. § 214.2(1)(3)(ii). The Petitioner generally stated 
that he would be responsible for planning, leadership, time management, budgeting, recruiting, 
communication, and coordination and supervision, but it did not elaborate or provide specific 
information regarding his expected day-to-day tasks during the first year of operations. Further, we 
note that the Petitioner's business plan indicates that "[the Beneficiary] himself will be the Spanish 
teacher at the earlier stages of the business," a non-managerial role that was not included in the 
Petitioner's description of his proposed responsibilities. 
In response to a request for evidence (RFE), the Petitioner described the Beneficiary's proposed duties 
for the first year of operations as follows: 
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Matter of R-S- LLC 
• Establishment of revenue and expenditure targets. 
• Monitoring compliance with revenue and expenditure targets, taking cmrective 
action where necessary. 
• Development of the necessary administrative procedures to start the activity. 
• Negotiation of the rental contract. 
• Negotiation of the conditions of the learning center's bank account. 
• Hiring a company to carry out the necessary refurbishment on the premises. 
• Study of the competition and establishment of the prices of the learning center's 
services. 
• Study of marketing actions to promote the learning center. Hiring of companies 
that develop such market actions. 
• Presence in school associations and chambers of commerce. 
• Establishment of a computer system for the management of the learning center. 
• Hiring of accounting services. 
• Design of the distribution of the learning center's facilities. 
• Decision to purchase the furniture, computer equipment and study material of the 
learning center. 
• Establishing the most appropriate class schedule. 
• Study of the labor market to establish the salary of teachers .... 
• Personnel selection. 
• Recruitment of personnel. 
• Supervision of the work carried out by the staff. 
In the denial decision, the Director emphasized that this expanded job description did not sufficiently 
demonstrate what the Beneficiary will do on a day-to-day basis. We agree with this conclusion, as 
several of listed responsibilities, such as establishing the company's revenue and expenditure targets, 
developing procedures, negotiating a lease, opening a bank account, conducting a market study, and 
setting initial budgets, would typically be performed prior to filing a new office petition and would 
not be perfmmed by the Beneficiary on a regular and ongoing basis. 
Further, while the description establishes the Beneficiary's authority to hire and supervise employees, 
and reflects his overall authority over budgetary matters and company policies and procedures, it does 
not describe with sufficient specificity the types of tasks that he would be performing during the first 
year of operations, such that we can conclude that it is more likely than not the his actual duties would 
be primarily managerial by the end of the first year. Reciting a beneficiary's vague job responsibilities 
or broadly-cast business objectives is not sufficient; the regulations require a detailed description of 
the beneficiaiy'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), ajf'd, 905 F.2d 
41 (2d. Cir. 1990). Here, the Petitioner has not provided the necessary detail or an adequate 
explanation of the Beneficiary's proposed activities in the course of his daily routine. 
In addition, as with the initial description, the longer position description submitted in response to the 
RFE neglected to mention the Beneficiary's secondary role as the Petitioner's Spanish language 
teacher and did not indicate how much of his time would be allocated to non-managerial teaching 
activities. The Petitioner's description of the Beneficiary's job duties did not establish what proportion 
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Matter of R-S- LLC 
of the duties would be managerial in nature, and what proportion would be non-managerial. See 
Republic o/Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
On appeal, the Petitioner submits a supplemental position description. Briefly, the Petitioner indicates 
that the Beneficiary will allocate his time as follows: 
• Planning ( 60%) 
• Leadership (7.5%) 
• Time Management (2.5%) 
• Budgeting ( 10%) 
• Recmiting (5%) 
• Communication (7.5%) 
• Coordination and supervision: (7.5%) 
This version of the description, like previous iterations, fails to address the amount of time the 
Beneficiary will spend acting as the Petitioner's Spanish language teacher. Accordingly, we find it 
reasonable to question that the provided percentages accurately reflect the proposed duties. 
Further, we note that, while the Petitioner has included percentages in an attempt to convey how the 
Beneficiary will allocate his time, the description contains a number of vague and non-specific 
responsibilities which lessen its probative value. The Petitioner indicates that the Beneficiary will 
spend the majority of his time on "planning" responsibilities, but lists sub-duties that do not 
sufficiently explain the associated tasks. For example, the Petitioner states that he will be responsible 
to "ensure compliance with business standards and quality assurance procedures," prepare "mitigation 
strategies," "review and revise project plan," and "ensure project documents are complete, current and 
stored as expected." However, the Petitioner has not elaborated with respect to the types of"projects" 
in which an after-school learning center would be engaged, nor has it defined its "quality assurance 
procedures" so that we may better understand the Beneficiary's duties in context of the business or 
dete1mine whether these are credible managerial duties. 
Other duties found throughout the description are not clearly managerial responsibilities. For example, 
the Petitioner states that the Beneficiary will devote approximately 30% of his time to "cultivate key 
client relationships"; maintain awareness of industry trends and competitors' strengths and 
weaknesses; "oversee" prices and services provided by other learning centers"; maintain financial 
records; and develop marketing actions. These duties suggest his involvement in the company's 
routine financial, marketing, and business development activities and, without additional detail, cannot 
be deemed managerial in nature. 
We acknowledge that the Beneficiary, as the Petitioner's owner and senior employee, would have 
authority to establish plans, policies, and objectives for the company, supervise any employees hired, 
and make decisions regarding the company's overall direction. However, the Petitioner must also 
establish that these types ofresponsibilities would primarily occupy the Beneficiary's time within one 
year, and to make this determination, we review the totality of the evidence. The Beneficiary's 
discretionary authority is only one of several factors we consider in determining whether the Petitioner 
would employ her in a qualifying capacity at the end of the one-year new office period. 
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Matter of R-S- LLC 
The Director's decision reflects that she properly considered the evidence as a whole to determine 
whether the Petitioner met its burden to show that it would have a reasonable need for the Beneficiaiy 
to primarily perform the claimed managerial duties within one year. For the additional reasons 
discussed below, the Petitioner has not met this burden. 
B. Business Plan and Projected Staffing 
In order to qualify for L-lA nonimmigrant classification during the first year of operations, the 
regulations require a petitioner to disclose the proposed nature of the business and the size of the U.S. 
investment, and establish that the proposed enterprise will support an executive or managerial position 
within one year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As noted, the Petitioner intends to offer a language and learning center that will offer group and 
individual classes and tutoring in a variety of subjects to elementary and secondary school students, 
as well as Spanish and English language classes for persons of all ages. The Petitioner indicates that 
its services will be available in-home, at its learning facility, or online via Skype. According to its 
business plan, its offices will be open six days per week for 49.5 hours, and it will provide after-school 
and Saturday instructional services for 24 hours per week. 
The Petitioner's business plan indicated that "teachers will be hired as demand for the lessons grow." 
However, it stated that "from the ve1y beginning two teachers will be needed for the regular subjects, 
and one teacher for the English lessons," with the Beneficiary serving as the Spanish language teacher. 
The business plan states that the Beneficiary would be the only full-time employee and that teachers 
would be paid a base hourly wage of $13.00 per hour. 
The Petitioner also submitted a proposed organizational chaii, which also indicated that three teachers 
would be hired. However, it identifies one proposed position as a "head teacher" that will report directly 
to the Beneficiary, and two lower level teachers who will report to the head teacher. This structure is 
not supported by the Petitioner's business plan, which did not distinguish between the teachers, other 
than indicating that some would teach general classes and some would teach language classes. 
The business plan's "Revenue Assumptions" indicate that the Petitioner estimated that it would pay 
$40,320 in salaries and wages during the first year. The Beneficiary himself is to be paid $30,000, so 
it appears that the Petitioner intends to pay its teaching staff $10,320 in its initial year of operations. 
In response to the RFE, the Petitioner altered its hiring plans. Specifically, the Petitioner noted that, 
during its first year, it intends to hire only a head teacher and a teacher. The Petitioner did not submit 
a revised business plan or explain why it had decided to adjust its hiring plan. The Petitioner stated 
that the head teacher will be responsible for teaching students in grades 11 and 12 and test preparation 
classes as well as motivating and training teachers, resolving minor disciplinary duties, and carrying 
out undefined "administrative tasks." The Petitioner noted that the teacher would teach students in 
grades I to I 0, prepare lesson plans and instructional materials, manage student behavior, monitor 
student progress, and complete a daily student report. 
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Matter of R-S- LLC 
Despite the Petitioner's initial claim that it would have an immediate need for an English teacher, the 
staffing plan submitted in response to the RFE did not mention this position. Given that the Petitioner 
previously indicated that the Beneficiary himself would be expected to serve as the Spanish teacher, 
it is reasonable to question whether he may also undertake teaching the English classes. The Petitioner 
indicated in its business plan that it expects its language classes to consistently generate approximately 
one-third of its overall revenues, so its decision to eliminate the English teaching position requires 
explanation. 
Due to the unexplained inconsistencies in the submitted staffing plans, the Petitioner has not met its 
burden to describe the proposed organizational structure of its new office. See 8 C.F.R. 
§ 214.2(1)(3)(v)(C)(l). Nevertheless, we note that the Director based her decision, in part, on the 
staffing structure described in the response to the RFE, so we will address that analysis and the 
Petitioner's argument on appeal. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(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. 8 C.F.R. 
~ 214.2(l)(l)(ii)(B)(3). 
Here, the Petitioner claims that the Beneficiary qualifies as a personnel manager because he will 
supervise professional teachers. To determine whether a 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. Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any 
occupation for which a U.S. 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." 
Therefore, we must focus on the level of education required by the position, rather than the degree 
held by a subordinate employee. Here, the Petitioner specified that its head teacher and teacher would 
both be required to have a bachelor's degree in education. However, we cannot conclude that a teacher 
hired on an hourly basis to provide tutoring at an after-school learning center would be regarded as a 
"teacher in elementary or secondary schools, colleges, academies, or seminaries." The Petitioner also 
seeks to rely upon the Bureau of Labor Statistics Occupational Outlook Handbook, noting that 
"teachers of all levels (K to 12) need a bachelor's degree as entry-level requirements." In this regard, 
we note that the Bureau of Labor Statistics has a separate occupational listing for 'Tutors" which 
appears more appropriate given the nature of the Petitioner's organization. For example, tutors have 
a median hourly wage of $14. 83, similar to what the Petitioner intends to pay its staff, while elementary 
school teachers have significantly higher wages. See O*Net OnLine Summary Report for Tutors, 
https://www.onetonline.org/link/summary/25-3099.02 (last accessed on Aug. 12, 2019). 
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Matter of R-S- LLC 
Further, even if we determined that the Beneficiary would likely supervise one or more professional 
teachers by the end of its initial year, this finding would not lead to a conclusion that he would be 
employed in a managerial capacity. The Petitioner indicates that the Beneficiary would be spending 
approximately one-quarter of his time on personnel functions such as meeting with the head teacher, 
mentoring, recruiting, scheduling, training and "periodic close coordination" with teachers. The 
Petitioner must still meet its burden to establish that the Beneficiary's actual duties would be primarily 
managerial in nature within one year. 
We must take into account the reasonable needs of the organization and the company's size alone may 
not be the only factor in determining whether the Beneficia1y would be employed in a managerial or 
executive capacity. See section 101(a)(44)(C) of the Act. However, it is appropriate to consider the 
proposed size of the petitioning company in conjunction with other relevant factors, such as the 
absence of employees who would perform the non-managerial or non-executive operations of the 
company. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS. 153 F. Supp. 
2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when USCIS notes 
discrepancies in the record. See Systronics, 153 F. Supp. 2d at 15. 
As noted, the Petitioner indicates that the Beneficiary would be the only full-time employee of its 
learning center, and that it would employ either two or three part-time teachers by the end of the first 
year of operations. The Petitioner indicates that the Beneficiary will spend an unknown portion of his 
time teaching Spanish language classes, and it has not consistently indicated that it will hire an English 
teacher to relieve him from teaching those classes as well. Further, the Petitioner does not indicate 
that it will hire any staff to relieve the Beneficiaiy from performing routine marketing, financial, 
administrative, or other operational tasks associated with running the business. As noted, the 
Petitioner indicates that its office will be open for almost 50 hours per week, but it has not identified 
any proposed office staff to perform routine tasks such as answering phones or greeting students. 
Based on the information provided, we cannot conclude that the Beneficiary would be relieved from 
significant involvement in non-managerial activities within one year. 
After reviewing the totality of the evidence, we find that the Petitioner has not adequately described 
what the Beneficiary will be doing during the initial year of operations or beyond, nor has it sufficiently 
or consistently explained the intended staffing of the new office. Accordingly, the Petitioner did not 
demonstrate that the Beneficiary would primarily engage in managerial duties, or that the new office 
would support a managerial position, within one year of approval of the petition. 
III. BENEFICIARY'S EMPLOYMENT ABROAD 
The Director also denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary has been employed abroad in a managerial capacity. The Director found that a number of 
the Beneficiary's job duties as owner and manager of the affiliate entity in Spain, which also operates 
a learning center, were not managerial in nature. The Director further determined that the record did 
not establish that the foreign entity's subordinate staff ( consisting of a head teacher and two teachers) 
included supervisory or professional employees, or that it has sufficient staff to relieve the Beneficiary 
from involvement in the foreign entity's non-managerial, day-to-day operations. 
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Matter of R-S- LLC 
On appeal, the Director states that "[t]he Beneficiary's duties abroad are managerial in nature because 
he supervises professional employees." Specifically, the Petitioner maintains that Spanish law 
requires kindergarten, elementary and high school teachers to have a bachelor's degree as a minimum 
requirement, and that the Beneficiary's subordinates all possess such degrees. 
However, even ifwe determined that the Beneficiary's foreign subordinates are professionals, we note 
that the Petitioner has not addressed the Director's conclusion that the Beneficiary's actual duties as 
described in the record are not primarily managerial in nature, or the Director's determination that the 
Petitioner did not establish that the foreign entity's staff sufficiently relieve the Beneficiary from 
perfmming non-qualifying duties. Whether the Beneficiary is a managerial employee turns on whether 
the Petitioner has sustained its burden of proving that his duties are "primarily" managerial. See 
section 10l(a)(44)(A) of the Act. The Beneficiary's claimed supervision of one or more professional 
employees is not sufficient to meet the Petitioner's burden; in fact, the submitted foreign position 
description indicates that the Beneficiary spends only 15% of his time on personnel matters. 
Accordingly, we will affirm the Director's adverse determination with respect to the Beneficiary's 
employment capacity abroad. We agree with the Director's determination that the submitted position 
description is not sufficient to establish that the Beneficiary's actual duties have been primarily 
managerial in nature. For example, the Beneficiary's listed responsibilities include "meetings with 
parents and students" and "supervision of student's performance." These duties, which account for 
40% of his time, are too vague to be categorized as managerial in nature. The Petitioner also indicates 
that the Beneficiary is involved in the company's financial, marketing, and administrative tasks, and 
the record reflects that he has no subordinate personnel responsible for assisting him with these non­
managerial duties. 
Finally, we note that the foreign entity's three teachers at the time of filing were all hired in early 2018, 
in the months preceding the Beneficiary's arrival to the United States in April 2018. The Petitioner 
must show that the Beneficiary has been employed abroad in a managerial capacity for at least one 
year in the three years preceding the filing of the petition. See 8 C.F.R. § 214.2(1)(3)(iii). Therefore, 
we must look at the foreign entity's staffing levels prior to 2018. Whereas the record reflects that the 
foreign entity was paying its teachers a total of €2880 per month in 2018, the record contains monthly 
expense reports from 2017 showing that its teacher payrolls ranged from a high of €83 7 .13 per month 
in the first several months of the year, to €5 7. 73 in June, July and August 201 7, with no teacher payroll 
expenses at all reported for the months of September through December 201 7. It is unclear how the 
foreign entity would have supported the Beneficiary's claimed managerial position with a significantly 
reduced or even nonexistent teaching staff in 201 7. 
Based on the foregoing, the Petitioner has not overcome the Director's determination with respect to 
the Beneficiary's employment abroad, and the appeal will be dismissed for this additional reason. 
IV. PHYSICAL PREMISES 
Although not addressed by the Director, we find that the Petitioner did not establish that it secured 
sufficient physical premises to house its new office as of the date of filing in July 2018. See 8 C.F.R. 
§ 214.2(1)(3)(v)(A). The Petitioner must establish that all eligibility requirements for the immigration 
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Matter of R-S- LLC 
benefit have been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 
103.2(b)(l). 
At the time of filing, the Petitioner stated that the Beneficiary's worksite would be located atD 
Florida. In lieu of a lease, the Petitioner '-------------------------' submitted a "Shared Space Service Agreement," signed in June 2018. According to the terms of the 
agreement, the Petitioner had a month-to-month agreement for a '1 I Package" at al I 
Executive Suites Business Center with a monthly fee of $135. The record does not contain a 
description of what was included in this I I Package" nor is it evident based on the documentation 
submitted that this low fee included the exclusive use of an office or any other physical premises, 
much less sufficient space from which to operate a learning center. 
In response to the RFE, the Petitioner provided evidence that it signed a lease for an 1180 square foot 
premises located in a I I center that appears to be appropriate for the intended business. 
However, the lease was signed on August 15, 2018, more than one month after the petition was filed, 
and does not establish that the Petitioner had satisfied this eligibility requirement as of the date of 
filing. For this additional reason, the petition cannot be approved. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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 R-S-LLC, ID# 3260725 (AAO Aug. 13, 2019) 
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