dismissed L-1A Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 20, 2019 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an entity that intends to provide human resource (HR) solutions to small and midsize 
businesses, seeks to temporarily employ the Beneficiary as president of its new office 1 under the L­
lA nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the 
Act) section 10l(a)(l5)(L), 8 U.S.C. § l 10l(a)(l5)(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 Petitioner did not 
establish, as required, that: (1) the Petitioner's foreign parent company, a distributor and product 
developer of the I I brand of condoms, employed the Beneficiary in a managerial capacity; 
and (2) the new office would support the Beneficiary in a managerial position within one year of 
approval of the instant petition. 
On appeal, the Petitioner disputes the denial asserting that the Director overlooked critical evidence 
and incorrectly characterized the Beneficiary's proposed job duties as non-managerial. 
Upon de nova review, we find that the Petitioner has not established that the new office would support 
the Beneficiary in a managerial position within one year of the petition's approval. Therefore, we will 
dismiss the appeal. Because of the dispositive effect of this finding, we will reserve the remaining 
issue. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-lA nonimmigrant visa classification in a petition involving a new 
office, a qualifying organization must have employed the beneficiary 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 
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(l)(l)(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 S-C-, Inc. 
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 
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 OR EXECUTIVE CAPACITY 
The Petitioner claims that it will employ the Beneficiary in a managerial capacity. The primary issue 
to be addressed in this decision is whether the Petitioner established that the new office would support 
a managerial position within one year of approval of the petition. 
"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. 
A. New Office Requirements 
In the case of a new office petition, we review 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 beneficiary to perform duties that are primarily managerial or executive in nature 
within one year of the petition's approval. Accordingly, we consider the totality of the evidence in 
analyzing whether the proposed managerial or executive position is plausible based on 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). 
If staffing levels are used as a factor in determining whether an individual will be acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) takes into 
account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 10l(a)(44)(C) of the Act. 
At the time of filing this petition, the Petitioner claimed nine employees and provided an initial 
supporting cover letter stating that it intends to use its own "technology platform and HR, benefits, 
and compliance expertise" in order to provide its clients a variety of HR services, such as 
compensation and benefits, payroll processing, health insurance, and workers' compensation 
programs. The Petitioner did not describe the characteristics of its "technology platform," but stated 
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Matter of S-C-, Inc. 
that it would derive "expertise" in the related subject matter from "the collective insights and 
experience of our teams of HR and compliance professionals," who will assist the Petitioner's clients 
"in running their business[ es]." The Petitioner stated that it plans to sell its services "through our 
direct sales organization," which will involve using sales representatives and digital marketing, 
participating in marketing events, and forging business relationships with "other vertical market 
industry associations." 
The Petitioner also provided a business plan that is incongruent with its supporting cover letter in 
terms of the Petitioner's list of projected service offerings. Namely, the "Executive Summary" section 
of the business plan indicates that the Petitioner will offer "legal, HR, and management consulting 
services." Neither legal nor consulting services were mentioned in the initial support statement; rather, 
both were discussed in the business plan, which goes into considerable detail about the consulting 
services, stating that the Petitioner "will assist a variety of startups and individuals who need 
consulting on finding their niche." Although the business plan refers to a "future employee growth 
plan," it states that the Petitioner already "has a team of professional employees" who are able to 
provide consulting services to prospective business clients in "different industries." 
Section 9 of the business plan addresses the Petitioner's existing staff: including a licensed attorney 
as its general counsel, an executive assistant, a financial manager, and sales and marketing manager. 2 
The Petitioner offered job descriptions for these positions, indicating that the existing support staff 
will service the Petitioner and address its administrative and operational needs. The Petitioner did not 
indicate that the existing support staff would provide consulting, legal, or staffing services to its clients. 
Section 9.4 of the business plan shows that the Petitioner currently has five "leased employee 
professionals" and plans to hire more of these "employees" over the course of a three-year period. 
The Petitioner did not, however, explain how the in-house employees would differ from "leased 
employees" in regard to their employment status with the Petitioner given that both the in-house and 
the "leased" individuals are included in the Petitioner's payroll summary from June through August 
2018. Aside from listing the leased employees in its payroll summary, it is not clear that they would 
otherwise be considered as the Petitioner's employees, given that they provide services to the 
restaurant where they will actually perform their work. 
The Petitioner also provided a "Co-Employment Agreement" that was in effect the time of filing, 
showing that the Petitioner was contracted by I I to staff a restaurant with five 
"leased" employees, including a server, a dishwasher, a busser, and two cooks. According to section 
9.9 of the business plan, each leased employee "will hold at least a Bachelor's degree ... or they may 
have significant work experience that qualifies them for the desired position" and will "provide 
managerial expertise and fill in for any additional load of work" as well as work "on a project basis as 
management consultants" allocating 30% of their time to consulting and another 30% to working "in 
professional roles." It does not appear that the employees who were hired to work as restaurant staff 
would provide "management consulting" services or assume "professional roles." Furthermore, the 
Petitioner did not provide evidence to show that either a Bachelor's degree or "significant work 
experience" is necessary to perform the duties required of these positions, nor did it indicate that the 
leased employees' job duties would involve serving as management consultants and working in 
2 Although the Petitioner listed the Beneficiary among its current staff, it indicated that the general counsel would be the 
acting manager until the Beneficiary is able to come to the United States to assume his proposed position. 
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Matter of S-C-, Inc. 
"professional roles," as indicated in the business plan's job description for leased employees. 
Furthermore, although the above described "Co-Employment Agreement" states that the Petitioner 
"will invoice the Client at a rate of costs plus fifteen percent (15%)," the Petitioner did not define the 
term "costs" within the context of this agreement. As such, the fee structure for the staffing service 
the Petitioner provided, and possibly continues to provide, to the restaurant is unclear. 
Further, although the business plan contains a "Financial Forecasts" section, which provides an 
overview of the Petitioner's "break-even" point, lists its projected costs and sales income, and includes 
a profit/loss table breaking down its expenses and profit margins, the Petitioner did not provide a fee 
schedule for the legal, consulting, and human resources services it plans to offer its future clients. As 
such, it is unclear how the Petitioner arrived at the annual revenue and cost of sales projections that 
were included in this section of the plan. 
In a request for evidence (RFE), the Director pointed to and asked for an explanation regarding an 
inconsistency between a job duty breakdown for leased employee professionals and the actual work 
performed by the five leased employees who were hired to staff a restaurant. 
In response, the Petitioner pointed to its existing staff of four in-house employees, contending that the 
Beneficiary's "managerial services" are required to oversee these professional and supervisory 
subordinates. The Petitioner farther asserted that it has already attained a level of operation where it 
can employ the Beneficiary in a managerial capacity, even though it still qualifies as a "new office" 
and would not be required to employ the Beneficiary in a managerial capacity under an approved 
petition. The Petitioner also copied portions of the business plan into its response letter and explained 
that its existing in-house staff will oversee any additional leased employees, stating that "these 
subordinate employees will be either professional or managerial themselves." The Petitioner did not 
clarify whether the phrase "these subordinate employees" applied to its existing in-house staff or 
whether it applied to the additional "leased employee professionals." Given that the five existing 
leased employees were hired to staff a restaurant and would not be deemed professional or managerial, 
the same may be true of any leased employees the Petitioner will hire in the future. The Petitioner 
must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 
25 I&N Dec. 369,376 (AAO 2010). 
Furthermore, the Petitioner did not address the Director's concern regarding the incongruity between 
the types of positions filled by the existing leased employees and the types of job duties listed in the 
business plan's job duty breakdown for leased employees. Instead, the Petitioner resubmitted 
previously provided job descriptions for its in-house and "leased" personnel without explaining who 
will provide clients with legal, HR, and consulting services, which the Petitioner claimed as critical 
functions for generating revenue. 
The Director denied the petition concluding that the Petitioner did not establish that it would employ 
the Beneficiary in a managerial or executive capacity within one year of the petition's approval. 
Although the Petitioner has appealed the Director's decision, it has not established that it would have 
the staff in place to relieve the Beneficiary from having to provide consulting services to its future 
consulting clients. Despite providing evidence showing that the Petitioner currently employs an 
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Matter of S-C-, Inc. 
attorney, an executive assistant, and two managers, the job descriptions offered for these positions do 
not indicate that the existing employees would be responsible for working with businesses to provide 
legal and business consulting services or the various HR administrative and operational services the 
Petitioner plans to offer its clients. As such, it is unclear how the Petitioner would carry out the tasks 
needed to generate income and meet its revenue projection so that it can function and progress beyond 
its first year of operation. We cannot assume that the Beneficiary's subordinate staff will carry out 
job duties beyond those that have been included in their respective job duty descriptions, nor can we 
assume that the Petitioner will be adequately staffed with employees who will provided the actual 
services that will generate income. As stated above, the Petitioner must support its assertions with 
relevant, probative, and credible evidence. Id. 
Moreover, the record remains inconsistent as to the proposed functions of the Petitioner's "leased 
employee professionals." Despite the job description contained in the business plan, which indicates 
that the leased employees will hold "professional roles" and "[ w ]ork as consultants," the leased 
employees that had actually been hired as of the date this petition was filed did not fit either of these 
characteristics, as they were hired to staff a restaurant and would perform tasks that are consistent with 
that operation rather than tasks of a professional consultant. The Petitioner must resolve this 
inconsistency 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). 
In light of the deficiencies described above, we find that the Petitioner has not established that its 
operation will be adequately staffed with employees who will provide the legal, consulting, and HR 
services it plans to offer its future clientele. 
B. Duties 
We also reviewed the job descriptions of the Beneficiary and his projected subordinates and we find 
the duty descriptions to be insufficient to establish that the Beneficiary would perform primarily 
managerial job duties within one year of the petition's approval, as claimed. 
The statutory definition of"managerial capacity" allows for both "personnel managers" and "function 
managers." See section 10l(a)(44)(A) of the Act. Personnel managers are required to primarily 
supervise and control the work of other supervisory, professional, or managerial employees. The term 
"function manager" applies generally when a beneficiary is primarily responsible for managing an 
"essential function" within the organization. See id. 
The Petitioner included a job duty breakdown listing a number of vague job duties for the Beneficiary's 
proposed position. Namely, the Petitioner stated that the Beneficiary would allocate his time in the 
following manner: 
• 15% overseeing "all positions in the daily operations"; 
• 15% directing managers in implementing strategies and identifying business opportunities; 
• 10% supervising management in their search for business opportunities; 
• 10% overseeing the creation and implementation of sales and marketing campaigns; 
• 10% reviewing managers' reports on "outsourced marketing strategy"; 
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Matter of S-C-, Inc. 
• 10% reviewing financial reports and making adjustments to the budget; 
• 20% directing management in the creation of "strategic and tactical plans"; and 
• 10% establishing client relationships. 
Although the Petitioner also indicated that the Beneficiary would have the authority to set business 
objectives, hire and fire employees, adjust their work schedules and evaluate performances, and make 
recommendations to change existing rules, it did not explain its reference to an "outsourced marketing 
strategy" and "strategic and tactical plans" within the context of a business consulting company; nor 
did the Petitioner provide information establishing how the Beneficiary would oversee management's 
creation of those plans. Likewise, the Petitioner did not state the types of activities that would be 
required to oversee "all positions" and to create and implement marketing campaigns. Moreover, the 
Petitioner did not state whether the above job description applies to the position currently being offered 
to the Beneficiary or whether it would apply to the Beneficiary in the future, once the Petitioner enters 
its next developmental phase. Given the vague content of the job description, we are unable to make 
this critical distinction. 
In the RFE, the Director noted that the Petitioner did not provide sufficient details about the 
Beneficiary's proposed job duties. Although the Petitioner provided a response and addressed various 
other portions of the RFE, it did not provide farther information elaborating on the Beneficiary's 
proposed job duties or clarify whether the job duty breakdown that was included both in the original 
business plan and in the RFE response applied to the Beneficiary's proposed position under the instant 
petition within the context of a new office. 
In the denial decision, the Director again noted the need for providing specific information when 
offering a description of the Beneficiary's proposed employment, noting that the job duty breakdown 
the Petitioner provided did not adequately demonstrate that the Beneficiary would be employed in a 
managerial or executive capacity within one year of the petition's approval. Although the Petitioner 
disputes the Director's finding on appeal, it does not offer additional information about the 
Beneficiary's job duties to explain precisely how he would ensure that the U.S. operation progresses 
beyond the new office phase of its development. Instead, the Petitioner argues that the act of 
"overseeing" or "directing" something or someone qualifies as a managerial job duty. We note, 
however, that despite the sense of discretionary authority that these terms denote, they are broad and 
ambiguous and therefore insufficient to convey a meaningful understanding of the precise nature of 
the activities the Beneficiary will perform within the scope of the Petitioner's business during its 
current or future state of development. 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). 
Although we agree that the Beneficiary is not expected to perform primarily managerial job duties at 
this initial stage of the Petitioner's development, a detailed description of job duties is nevertheless 
critical for the purpose of explaining precisely how the Beneficiary, through the duties he would 
perform under an approved new office petition, will help the Petitioner to progress beyond its current 
new office phase. As the Petitioner has not adequately stated what tasks the Beneficiary would be 
expected to undertake under an approved petition, we cannot make a conclusion as to the likelihood 
that the Beneficiary would be relieved from having to primarily perform the Petitioner's non-
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Matter of S-C-, Inc. 
managerial operational tasks within one year of the petition's approval. We further note that the 
Petitioner placed great emphasis on the Beneficiary's current job with the foreign entity, stating that 
the Beneficiary is "responsible for the overall operations of the Chinese company" and its "strategic 
decisions"; the Petitioner claimed that the Beneficiary's "education and business experience have 
given him a sound basis for leading" the U.S. entity. The Petitioner did not, however, explain how 
serving as a general manager and brand planning director for a company that develops and distributes 
a brand of condoms provided him with an understanding of how to run the U.S. entity, which plans to 
generate revenue by working with businesses to provide legal, consulting, and HR services. 
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 ofS-C-, Inc., ID# 3817021 (AAO June 20, 2019) 
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