When determining whether a candidate meets the requirements of the L-1A visa category as a “functional manager”, the U.S. Citizenship and Immigration Service (“USCIS”) must now look at all relevant factors, including oversight of employees outside the U.S. This is good news for functional managers who seek to oversee an essential function for a company from within the U.S. (i.e. market development) while utilizing a team outside of the U.S. (i.e. engineers). This is even better news for the global organizations wishing to employ such skilled managers at affiliate entities in the U.S.
What is a functional manager? A functional manager is one option under the L-1A visa classification for multi-national companies to transfer management-level personnel from an entity outside the U.S. to an affiliated entity inside the U.S. The employee can either manage: (a) personnel, which include other supervisors, managers, or professional employees (those holding at least bachelor’s degree); or (b) an essential function within the organization. Employers seeking L-1A classification for functional managers must clearly define the essential function and describe in detail the job duties required to manage that function. The functional manager classification has come under heightened scrutiny from the USCIS in recent years, making the recent guidance all the more important.
On April 14, 2016, the USCIS issued a policy memorandum formally adopting the decision of the Administrative Appeals Office (AAO) in Matter of Z-A, Inc., which made the case binding policy on all USCIS employees. The managerial position in question in this case involved a Chief Operating Officer overseeing the market development function for a Japanese company with $900 million in annual revenue seeking to establish itself in the U.S. Since he was overseeing a new office, the COO only had two reports in the U.S.; however, he directed work to a team of eight in Japan and served on a senior management team for the global organization. While the USCIS originally denied the case by taking the narrow and restrictive view that overseeing two U.S.-based reports would not provide the COO the necessary freedom from performing non-managerial tasks, on appeal the AAO correctly looked at the full picture by focusing on the entire team under the COO’s direction and the petitioner’s global scope of business.
The formal adoption by the USCIS of Matter of Z-A- Inc. is welcomed news given the current climate at USCIS regarding the L-1 classification of managers overseeing global teams. The AAO originally issued its opinion on the case in early 2013. The AAO has also issued consistent opinions on similar cases in recent years. Despite receiving several such reminders from the AAO to carefully follow the rules as written, the USCIS routinely took issue with managers responsible for teams outside the U.S. It became common for companies and the attorneys who represented them to submit L-1A petitions for clearly-qualifying functional managers who oversaw global teams, but receive onerous and duplicative requests for evidence (RFEs) and even denials from the USCIS on such cases.
Going forward there may be delays and growing pains during the USCIS’ implementation of this new policy; however, the take away from this policy memo is that global companies are now able to use again a tried and trusted tool when looking to move key global managers into the U.S.
Posted by: Andy Finkle