To be eligible for an L-1A Intracompany Transferee Executive or Manager visa, you must first determine whether your position in the United States will be an “executive capacity” or in a “managerial capacity.” The requirements regarding executive capacity are much simpler than the regulations for managerial capacity. If at all possible, it is best to argue that your position will be in an executive capacity. However, if you believe that your employment will be in a managerial capacity, but you do not supervise any subordinate employees, you still may qualify for an L-1 if you can establish your position meets the requirements of a “function manager.” The elements of a managerial capacity position are:
- The position manages the organization, a department, subdivision, function, or major component of the organization;
- The position supervises and controls the work of other supervisory or professional employees; or manages an essential function of the organization, a department or subdivision of the organization;
- If the position directly supervises other employee(s), the position has the authority to hire and fire or take personnel actions over said employee(s); or if no employee(s) is directly supervised, acts as a senior level supervisor within the organizational or managed function; and
- The position must exercises discretion over the day-to-day operations over the areas s/he has authority. If the position supervises employees, simply being a first-supervisor is not enough; to be managerial the position must supervise professionals
The functional manager analysis is relevant to the second element of the managerial analysis. The second element is fulfilled even though the position does not supervise any employees. As long as the position manages an essential function of the organization, or a department or subdivision of the organization the position still meets the managerial capacity requirements Therefore, to meet the second requirement of the managerial capacity analysis, an employee may either supervise and controls the work of other professional employees or manage an essential function, department or subdivision of the organization.
Case law supports the approval of L-1A petitions for “functional” managers with small or no staff. The AAO approved a scrap metal company’s L-1A petition filed for its only employee and president. See Matter of X, 16 Immig. Reporter B2-84 (AAO Feb. 29, 1996). The beneficiary’s primary function was to obtain scrap metal for export and develop real estate through independent contractors.
Additionally, the AAO affirmed that the human resources manager, of a manufacturing plant belonging to a large multinational corporation, was performing an essential function even though the beneficiary did not supervise others at the time. See Matter of X, 2, Immig. Reporter B2-19 (AAO Mar. 27 2000).
Also, the relevant case law supports the approval of L-1A petitions for functional managers as long as they exercise wide latitude in discretionary decision making. For example, the AAO found the president of a company engaged in the acquisition and sale of aircraft equipment to qualify for an L-1A visa. See Matter of X, 10 Immig. Reporter B2-13 (AAO Apr. 13, 1992). Although the beneficiary managed the only other employee, the AAO cited the beneficiary’s wide latitude in discretionary decision making, including the hiring and firing of employees and the formation of the petitioner’s policies and goals, as grounds for granting approval.
In a similar case, a sound equipment sales and rental company sought to transfer its general manager to an office in the United States. See Matter of X, 18 Immig. Reporter B2-11 (AAO Jan. 23, 1998). In this case, the beneficiary oversaw a small, nonprofessional staff, as well as, hired and trained new employees, negotiated contracts, managed inventory and purchasing and directed expansion. The AAO found that a small staff does not justify a denial where the beneficiary holds wide decision-making discretion.
Recently, L-1 petitions have come under heightened scrutiny from United States Citizenship & Immigration Services (USCIS). If you are considering an employment based petition, H-1B Cap season is coming soon and you might encounter less resistance depending on which petition you file, assuming you are eligible for both petitions.