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Multinational organizations wishing to bring foreign managerial employees to the United States under an intracompany transfer visa now have a clearer definition of who qualifies as a "function manager" and what type of evidence to provide when petitioning, based on recent policy guidance issued by U.S. Citizenship and Immigration Services (USCIS).
The memo provides clarity to U.S. employers who transfer function managers—those who primarily manage essential functions rather than people—from an entity abroad to a U.S. entity using the L-1A visa. The decision is also relevant when a U.S. employer petitions to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity with a green card.
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USCIS released the policy memo in response to a recent decision made by its Administrative Appeals Office, which hears appeals from organizations and individuals of negative decisions made by immigration benefits adjudicators.
A new test adopted by USCIS determines which multinational employees can be considered function managers, said Sara E. Herbek, a shareholder in the Atlanta office of Ogletree Deakins, and the attorney who represented the prevailing employer in the case before the appeals office. "The employer must first establish that the function is a clearly defined activity and is essential to the organization," she said. "Secondly, the employer must establish that its employee's position meets the criteria for managerial capacity as defined in the Immigration and Nationality Act of 1965." That means that the employee will primarily manage, as opposed to perform, the function, act at a senior level within the organization or within the function being managed, and exercise discretion over the function's day-to-day operations, she explained.
"As corporate structures are changing from hierarchical to flat in a globally interdependent world, the role of the function manager, who manages a function rather than people, has become increasingly relevant under L-1A visa classification," said Cyrus Mehta, founder and managing partner of Cyrus D. Mehta & Partners, an immigration law firm in New York City. "A flat organization has few or no levels ... between management and staff-level employees. The flat organization supervises employees less while promoting their increased involvement in the decision-making process."
Mehta explained that the petitioner in the case was a large multinational corporation with over 8,000 employees worldwide. "USCIS has historically been less receptive to function manager claims of smaller corporations," he said. "It may be more challenging for a smaller entity to establish that a function is a clearly defined activity and is core to the organization as well as to demonstrate that the manager is performing at a senior level."
Still, petitioners should not fear making the argument that function managers of smaller corporations also meet the criteria, he said. "In a small organization, the function manager may establish seniority with respect to the function managed rather than within the organizational hierarchy."
The Trump administration has taken aim at the L-1 visa and has said that site visits to companies that employ professional foreign workers will increase next year.
"The L-1 visa has been heavily criticized over the past few years, with opponents arguing that it threatens domestic employment and floods the U.S with cheap foreign workers," Mehta said. "But the reality is quite the opposite. U.S. businesses can thrive, compete, prosper, create new jobs and benefit the American consumer through international operations, made that much easier with rapidly evolving Internet technology and innovative organizational structures."
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