By Daniela A. Hoegerle

What is a manager?

For an L-1A Intracompany Transferee Manager visa, the company petitioner must prove the beneficiary employee is a manager. An employee having managerial capacity is defined under 8 CFR 214.2(1). Managerial capacity is “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 the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, 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. 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.”

A beneficiary employee can qualify as a manager if all elements of the above managerial capacity definition are met. If staffing levels are used as a factor in determining whether an employee is acting in a managerial capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. 

However, an employee shall not be considered to be acting in a managerial capacity merely on the basis of the number of employees that the employee supervises or has supervised. Even if an employee beneficiary supervises a large number of employees, he or she may not be considered a manager if the other elements of the definition are not satisfied. An employee beneficiary may also be considered a manager if he or she does not supervise other employees. This can be done by proving the beneficiary employee is a functional manager.

What is a functional manager?

A functional manager can be defined by two significant immigration cases. The first case, Matter of G-, Inc., is a decision in which the Administrative Appeals Office (AAO) held that to establish a beneficiary will be employed in a managerial capacity as a function manager, the petitioner must demonstrate that: 

• (1) the function is a clearly defined activity; 
• (2) the function is essential (core to the organization); 
• (3) the beneficiary will primarily manage, as opposed to perform, the function; 
• (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and 
• (5) the beneficiary will exercise discretion over the function's day-to-day operations. 

The AAO elaborated that the petitioner must show the beneficiary will primarily manage the essential function by clearly describing the beneficiary's duties and indicating the proportion of time dedicated to each duty. While he or she may perform some operation or administrative tasks, the beneficiary must primarily manage the essential function. The petitioner must establish the beneficiary will occupy a senior position in the petitioner's organizational hierarchy or within the function managed and the beneficiary will have discretionary authority over the day-to-day operations of that function. The AAO provided some factors to consider, such as the nature and scope of the petitioner's business, the organizational structure and staffing levels, the value of the budgets, products, or services that a beneficiary will manage, and operational and administrative work performed by staff within the organization. 

Applying the rules to the specific case, the AAO concluded that the petitioner established the beneficiary would be employed as a functional manager in overseeing the financial planning and analysis function. First, financial planning and analysis provided the petitioner with financial strategies to optimize business opportunities and growth. Second, the unit's revenue planning and forecasting process impacted every business unit and geographic area within the worldwide organization. Third, the petitioner submitted evidence which indicated that the beneficiary led a financial planning and analysis team that oversaw the monthly revenue forecast process and collected financial data from delivery leads and global sales teams. Fourth, the beneficiary's revenue forecasts were used directly by the CFO and CEO to make critical financial decisions that impacted the organization as a whole. Fifth, the beneficiary established policies and processes used by staff to provide the financial information necessary to drive the financial planning and analysis function.

Another significant immigration case pertaining to the functional manager definition is Matter of Irish Dairy Board. According to that decision, the duties of a functional manager are not auxiliary or clerical in nature but constitute the essential functions necessary for the successful operation of the business. This determination requires a careful examination of the petitioning entity to determine if it has reached a stage of organizational development and is of such complexity that it can realistically be concluded that the beneficiary is primarily engaged in performing managerial functions. The beneficiary does not perform any of these functions him or herself but directs contractors to take action when he deems appropriate. The decision further held that independent contractors as well as company employees can be considered in determining whether an individual supervises others. A functional manager does not require a large number of employees. Under Matter of Irish Dairy Board, a sole employee can still be considered a functional manager if the business is complex or the employee directs contractors. 

Applying the rules to the specific case, the beneficiary was performing an essential and controlling function with respect to a large and complex business enterprise requiring significant decision making. Moreover, the record clearly indicated the beneficiary was primarily and solely responsible for the direction of the petitioning entity with little or no supervision from the firm's board of directors.

How do you show you are a functional manager?

USCIS will frequently send a request for evidence asking to show, if the beneficiary is a functional manager, who performs the function. This can either be other employees or it can be contractors hired to perform those duties. To show an employee is a functional manager, he or she must prove that fifty percent (50%) or more of his or her time is spent on managing an essential function of the organization and that all elements listed in Matter of G-, Inc. are satisfied. The employer must show the beneficiary employee manages the function at a senior level with discretion of the day-to-day activities and spends the majority of the time managing, not performing the function. For the L-1A visa petition, supporting documentation evidencing an employee is a functional manager is required. One example of supporting documentation is an organization chart, which provides a visual demonstration of the employee's managerial role and responsibilities. This chart should include dotted line reports leading to sub-contractors, professional or managerial employees from other departments, and employees with greater levels of responsibility. Another example of supporting documentation is an employer letter, which should clearly address each of the regulatory elements and factors noted in 8 CFR § 214.2(1).

Contact the Law Offices of James D. Eiss today to learn more about functional managers under the L-1A visa category.