The USCIS issued a Policy Memorandum adopting as binding a USCIS Administrative Appeals Office (AAO) non-precedent decision that provides guidance on evidence considered when determining whether a beneficiary qualifies as L-1A functional manager. The decision clarifies that, when determining whether an L-1A beneficiary will primarily manage an essential function, USCIS officers must weigh all relevant factors including, if applicable, evidence of the beneficiary’s role within the wider qualifying international organization.
A successful functional manager petition must provide evidence that a beneficiary’s duties are primarily managerial– not primarily performing roles that the supervised workers perform. The USCIS officers consider factors such as the nature and scope of the petitioner’s business; the petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization; the scope of the beneficiary’s authority; the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and, any other factors that will contribute to understanding the beneficiary’s actual duties and role in the business.
When USCIS officers consider staffing levels to determine whether a beneficiary will act as a manager, the reasonable needs of related entities in the international organization and overall stage of development of the company are also relevant. The AAO decision explains that adjudicators must consider the beneficiary’s role within the corporate group’s organizational hierarchy and any foreign employees within that hierarchy who perform the essential function and thereby support the day-to-day operational needs of the function.
The decision’s guidelines may be helpful to show a beneficiary’s managerial capacity in a company with few employees in the United States and foreign employees who perform administrative and other duties related to the function in the United States. For example, in the case underlying the decision, the sponsoring employer’s U.S. operation to develop the U.S. market for a large sized foreign company consisted of a functional manager with the title Chief Operating Officer and two other U.S. employees. To show the beneficiary is performing primarily managerial duties, that employer submitted documentation about overseas staff, such as technical, sales, and administrative staff, performing the essential function and dedicated to support the growth of the corporate group’s U.S. business.
See the April 14, 2016 Policy Memorandum here.
