dismissed L-1A Case: Tourism

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-R-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 3, 2019 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a tour group operator, seeks to continue the Beneficiary's temporary employment as its 
general manager under the L-lA nonimmigrant classification for intracompany transferees. 1 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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner would employ the Beneficiary in a managerial capacity under 
the extended petition. 
On appeal, the Petitioner submits additional evidence and asserts that the Director's decision reflects 
that he did not review the evidence in its totality or consider the reasonable needs of the company in 
light of its current stage of development. 
Upon de nova review, 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 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. 
1 The Petitioner previously filed a "new office" petition on the Beneficiary's behalf which was approved 
for the period October 16, 2017, until October 15, 2018. A "new office" is an organization that has been 
doing business in the United States through a parent, branch, affiliate, or subsidiary 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 ofiice" 
operation one year within the date of approval of the petition to support an executive or managerial 
position. 
Matter of S-R-, Inc. 
A petitioner seeking to extend an L-lA petition that involved a new office must submit a statement of 
the beneficiary's duties during the previous year and under the extended petition; a statement 
describing the staffing of the new operation and evidence of the numbers and types of positions held; 
evidence of its financial status; evidence that it has been doing business for the previous year; and 
evidence that it maintains a qualifying relationship with the beneficiary's foreign employer. 8 C.F.R. 
§ 214.2(1)(14)(ii). 
II. DEFINITIONS 
"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. 
"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 definitions of managerial and executive capacity, the Petitioner must first show 
that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 
940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). The Petitioner must also prove that the 
Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The sole issue before us is whether the Petitioner established that it will employ the Beneficiary in a 
managerial or executive capacity. We note that the Petitioner has consistently stated that the 
Beneficiary's duties are in a managerial capacity, while also citing to and claiming that the 
Beneficiary's duties meet the four elements of the statutory definition of executive capacity. We will 
therefore consider whether their proposed employment meets the requirements of either managerial or 
executive capacity. 
When assessing the managerial or executive nature of an offered position, we examine a petitioner's 
description of the job's duties. See 8 C.F.R. § 214.2(1)(3)(ii) (requiring an L-1 petitioner to submit "a 
detailed description of the services to be performed"). Beyond the required description of the job 
duties, we examine the company's organizational structure, the duties of the Beneficiary's subordinate 
employees, the presence of other employees to relieve the Beneficiary from performing operational 
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Matter of S-R-, Inc. 
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. 
A. Job Duties 
The Petitioner seeks to extend the Beneficiary's temporary employment as the general manager of its 
"study tour" business. The Petitioner arranges educational and vocation-related travel in the United 
States for groups of Chinese students and adults. 
At the time of filing, the Petitioner submitted a list of 21 duties the Beneficiary was expected to 
perform under the extended petition, divided into four areas of responsibility as follows: 
45% Directs the Management of the Company 
30% Establishes the goals and policies of the company 
15% Exercises discretionary decision-making 
10% Receives only general supervision or direction for Board of Directors 
We agree with the Director's determination that this initial description lacked sufficient specificity to 
reveal the nature of the Beneficiary's actual day-to-day tasks, as many of the duties were overly broad 
or simply paraphrased the statutory definition of executive capacity. For example, the Petitioner 
indicated that the Beneficiary's duties would include directing and overseeing "the entire operation of 
the company"; "having general responsibility for the operations and management"; "demonstrating 
the leadership necessary to make the organization's mission a success"; creating and implementing 
"the organization's vision, mission and overall direction"; "formulating and implementing the 
strategic plan that guides the direction" of the company"; "making all managerial and operational 
decisions"; "exercising all managerial and policy-making powers" and "unilaterally deciding on 
management responsibilities." 
These general statements were not supported by specific examples of strategies and policies the 
Beneficiary was expected to implement, and instead merely indicated their level of authority without 
delineating any actual job duties within the context of the Petitioner's business. 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 ofreiterating 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). 
In a request for evidence (RFE), the Director requested a more detailed statement of the Beneficiary's 
duties, including the duties performed during the previous year, and the duties they would be expected 
to perform under the extended petition. The Director noted that the statement should include the 
percentage of time to be allocated to specific duties. 
In response, the Petitioner submitted a letter that included a statement regarding the Beneficiary's 
duties during the previous year and those to be performed under an extended petition. However, the 
Petitioner's description of the Beneficiary's proposed duties was identical to the description provided 
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Matter of S-R-, Inc. 
at the time of filing. The Petitioner also submitted a separate table describing the Beneficiary's 
"weekly hour work ratio chart for the next three years," which provided the following breakdown: 
Administrative and Management Duties (21 hours per week or 52.5%) 
• Holds meetings with Operation Specialists, Full Time Tour Guide, Administrative 
Assistant and Marketing Staffs in China to discuss and review work plans (11 
hours) 
• Reply to emails and return important calls (2 hours) 
• Finance review and forecast (2 hours) 
• Employees training and evaluation ( 6 hours) 
Policy and Operation Duties (16 hours or 40%) 
• Development of tour itineraries to meet clients' needs and interests (4 hours) 
• Ocular inspection of tour sites, restaurants, partner hotel, bus companies (8 hours) 
• Research and study on tourism industry (1 hour) 
• Reporting to BOD of Chinese company and seeking guidance (3 hours) 
Professional Exchange Duties (3 hours or 7.25%) 
• Meet and establish relationships with business partners to improve service and 
reduce costs. 
Finally, the Petitioner included a "weekly schedule" that described the Beneficiary's proposed duties 
on a typical Monday through Friday workweek, which was consistent with the duties described above. 
We note that this description, which describes some of the Beneficiary's actual day-to-day duties within 
the context of the Petitioner's business as a tour company, bears little resemblance to the initial 
description that largely paraphrased the statutory definition of executive capacity. Further, the revised 
description was also insufficient to establish how the Beneficiary's duties will be primarily managerial 
or executive in nature. 
Specifically, the Petitioner has not established how developing tour itineraries, inspecting tour sites, 
hotels and bus companies, researching and studying the tourism industry, and establishing 
relationships with business partners, which would require nearly half of the Beneficiary's time, are 
consistent with the definition of managerial or executive capacity, rather than duties required for the 
Petitioner to provide its services. Although some of these duties overlap with the work performed by 
the subordinate operations specialist, the Petitioner did not indicate that the Beneficiary would be 
delegating all of these duties. Rather, based on the submitted descriptions, it appears that the 
Beneficiary would be performing these operational tasks alongside the subordinate employee. 
Further, we cannot determine that the time the Beneficiary would allocate to "administrative and 
management" duties would be primarily spent on qualifying tasks, specifically the responsibility for 
training lower-level staff: answering correspondence and calls, and certain interactions with 
subordinates. For example, one of the Beneficiary's daily duties is to "check on" bookings for hotels, 
buses, event tickets and meals for tour groups, a task that is not clearly managerial in nature. 
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Matter of S-R-, Inc. 
Finally, we note that some non-qualifying duties that were included in the Beneficiary's job 
description for the previous year have not been assigned to subordinates, which suggests that the 
Beneficiary may continue to perform them under the extended petition. Specifically, the Petitioner 
indicated that the Beneficiary had been responsible to "dispatch and arrange internal and external tour 
resources," a duty requiring 20 to 70% of their time depending on the season. It is evident that the 
Petitioner has an ongoing need for someone to coordinate its tour arrangements while groups are in 
the United States, and we cannot determine that the Beneficiary would be relieved from performing 
this task under the extended petition. 
The fact that the Beneficiary will manage or direct a business as its senior employee 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. By statute, eligibility for this 
classification requires that the duties of a position be "primarily" executive or managerial in nature. 
Sections 10l(A)(44)(A) and (B) of the Act. 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, the position descriptions here do not establish that they would 
primarily perform higher level duties consistent with the statutory definitions of managerial or 
executive capacity. 
B. Staffing and Organizational Structure 
The Petitioner stated on the Form 1-129 that it has four employees, including the Beneficiary. The 
Petitioner identified the subordinate employees as an operations specialist, a tour guide, and an 
administrative assistant, who all report directly to the Beneficiary. 
The Petitioner's organizational chart also identifies five sales and marketing employees, who work for 
its parent company and are responsible for selling the Petitioner's services to its Chinese clientele, and 
three part-time tour guides, who work on an as-needed basis. The Petitioner provided copies of 
employment contracts and evidence of wages paid to its three full-time staff, as well as payroll records 
for the China-based personnel. 
The Petitioner has identified the operations specialist, administrative assistant and tour guide are full­
time employees. The Petitioner indicates that the administrative assistant has an 8-hour workday and 
earns $14,400 per year. A full-time minimum wage employee in Maryland, as ofJuly 2018, would earn 
an annual salary of $21,000.2 The Petitioner also stated that the tour guide earns a $24,000 salary plus 
tips, but the payroll evidence indicates that this individual receives a monthly salary of$1300, or $15,600 
annually. Finally, we note that the Petitioner indicated at the time of filing that its operations specialist 
is paid $36,000 annually, but, in response to the RFE, stated that the salary is $24,000. The Petitioner 
did not explain this change or indicate whether it was accompanied by a reduction in work hours. 
Therefore, while the Petitioner has been consistently paying these three employees, there are unresolved 
questions as to whether they are full-time staff as claimed. See Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988) (requiring a petitioner to resolve inconsistencies of record with independent, objective 
evidence pointing to where the truth lies). While there is no requirement that the Beneficiary supervise 
2 See Website ofMaryland Department of Labor, Licensing and Regulation, "Maryland Minimum Wage and Overtime Law" 
(https://www.dllr.state.md.us/labor/wages/wagehrfacts.shtml, last visited on July 3, 2019). 
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Matter of S-R-, Inc. 
full-time staff: it is the Petitioner's burden to ensure that its statements are corroborated by the submitted 
evidence and to establish that its staff is sufficient to support a managerial or executive position. 
With respect to the part-time personnel, the Petitioner submitted an internally prepared "part-time tour 
guide payroll ledger" for the first 10 months of 2018, showing that these individuals each worked 
during two to three months. The Petitioner indicates that one tour guide earned $9974 for work 
performed mainly in July and August; one earned $9365 for work performed in June and September; 
and the third earned $3000 for work performed in August and September 2018. The Petitioner states 
that they were paid as contractors but did not provide corroborating evidence, such as copies of their 
contracts, IRS Form W-9, evidence of payments made to them, or evidence that they continue to be 
engaged by the company. 
As noted, the Petitioner claims that the Beneficiary will be employed in a managerial capacity. 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. 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 did not articulate a function manager claim, and did not submit evidence to show 
how the Beneficiary would qualify as a personnel manager. The record reflects that the Beneficiary 
has the authority to hire and fire staff: but the Petitioner has not demonstrated that they supervise a 
subordinate staff of supervisory, professional, or managerial employees. None of the Beneficiary's 
subordinates have subordinates of their own, so there is no tier of supervisory or managerial 
employees. The Petitioner indicates that the Beneficiary's subordinates are professionals and, on 
appeal, submits evidence that the operations specialist has a master's degree in computer science while 
the administrative assistant is a certified public accountant. The Petitioner stated that the operations 
specialist position requires an "undergraduate or above" degree but did not specify an educational 
requirement for the administrative assistant position. 
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 subordinate employee. The possession of a bachelor's degree by a subordinate employee does 
not automatically lead to the conclusion that an employee is employed in a professional capacity. The 
Petitioner has not established that a bachelor's degree is actually necessary to perform the duties of an 
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Matter of S-R-, Inc. 
administrative assistant or operations specialist. The record does not establish that the Beneficiary 
qualifies as a personnel manager. 
The Petitioner has not established, in the alternative, that the Beneficiary would be employed in an 
executive capacity. The term "executive capacity" describes an elevated position within a complex, 
organizational hierarchy. See section 10l(a)(44)(B) of the Act. Under the statute, a beneficiary must be 
able to "direct the management" and "establish the goals and policies" of an organization. Id. An 
executive position therefore must focus on an organization's broad goals and policies, rather than on its 
day-to-day operations. An individual will not be deemed an executive under the statute simply because 
they have an executive title or because they "direct" the enterprise as the sole managerial employee. 
Here, the Petitioner's description of the Beneficiary's duties indicates that they spend a significant 
portion of their time on operational duties and it has not supported its claim that their actual duties are 
primarily executive or managerial in nature. While the Petitioner has established that the foreign entity's 
sales and marketing staff perform these two functions, the record does not establish that the 
administrative assistant, tour guide, and operations specialist sufficiently relieve the Beneficiary from 
performing the day-to-day administrative and operational functions that must be performed in the United 
States. As noted, there are unresolved ambiguities in the record as to whether the U.S. staff are foll-time 
employees as claimed, which farther raises the question of their ability to relieve the Beneficiary from 
focusing on the company's day-to-day operations, rather than its broad policies and goals. 
The Petitioner correctly observes that we must take into account the reasonable needs of the organization 
and that a company's size alone may not be the only factor in determining whether the Beneficiary is or 
would be employed in a managerial or executive capacity. See section 10l(a)(44)(C) of the Act. We 
cannot impose a minimum size requirement on an L-lA petitioner. But we may consider size as a factor 
in assessing whether a business can support a manager or executive. See, e.g., Brazil Quality Stones, 
Inc. v. Chertoff, 531 F.3d 1063, 1070 (9th Cir. 2008) (holding that "size is nevertheless a relevant 'factor 
in assessing whether [ the petitioner's] operations are substantial enough to support a manager"') ( citation 
omitted). Here, our analysis of the executive nature of the offered position considered the Petitioner's 
size. But we also examined the Beneficiary's job duties, the Petitioner's organizational structure; its 
other positions and their job duties; the nature of its business; and the staff of its parent company. Our 
analysis therefore does not improperly focus on the Petitioner's size. 
For the reasons discussed, the Petitioner has not established that it would employ the Beneficiary in a 
managerial or executive capacity. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-R-Inc., ID# 4288448 (AAO July 3, 2019) 
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