Under the L-1A visa classification, a petitioner can claim the beneficiary will serve primarily as a manager or primarily as an executive. Both manager and executive capacities require you to show the beneficiary will perform certain high-level responsibilities, but does it matter which capacity you claim the beneficiary will serve in?
Yes, it does! It matters because each has their own definition, and USCIS will base their analysis on your express statements. Below I will discuss which parts of the definitions USCIS will focus on the most and recommendations to consider when preparing your petition.
- Choosing executive or managerial capacity matters because USCIS strictly applies different definitions and focuses on your actual duties, not your job title.
- An executive must direct a clear management layer, with a multi-tiered structure where others handle operational tasks, or the petition risks denial.
- A manager can be a personnel or function manager; success depends on subordinate roles, organizational structure, and minimizing operational duties.
The Executive Capacity: Requirements and USCIS Focus
What is an executive, and what does it mean to serve in an executive capacity?
To show USCIS that you will serve as an executive you must demonstrate you will primarily:
- Direct the management of the organization or a major component or function of the organization;
- Establish the goals and policies of the organization, component, or function;
- Exercise wide latitude in discretionary decision making; and
- Receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
Each element of the definition must be met; however, when a petitioner claims the beneficiary will serve in an executive capacity, USCIS will focus the most on whether the beneficiary has a management to direct.
How do I show I have a management to direct?
An executive directs the management of the organization, major component, or essential function of a given organization by controlling the work of managerial or lower-level executive employees. This means there needs to be a subordinate level of employees that serve as managers, and a subordinate level of employees that perform the day-to-day operations of the business.
Having a multi-tiered organization is recommended. A multi-tiered organizational chart where the beneficiary is at least one step removed from those performing the operational duties helps to support the claim that the beneficiary will direct the management of the organization.
A structure which depicts the beneficiary directly overseeing those performing the operational tasks of the business will not be sufficient to demonstrate there is a management to direct, and your petition will likely be denied.
A detailed description of duties and responsibilities for the subordinates is also recommended. Clearly identifying who performs the operational tasks of the business, and who performs the higher-level managerial tasks such as hiring and firing will also help.
Other Considerations for the Executive Capacity Claim
Regarding bullet points 2-4, USCIS will not usually focus too much on these elements, nor will they require much objective evidence to satisfy them. Typically, a detailed description within the duties indicating that the beneficiary establishes the goals and policies of the organization, exercises wide latitude in discretionary decision making, and receives only general supervision or direction is sufficient.
In a situation where you have an executive title, but no management to direct, it would benefit you to consider classification as a manager. Sometimes petitioners and beneficiaries focus more on the title rather than the duties; however, the focus should lie with the duties and needs of the organization.
The Managerial Capacity: Personnel vs. Function Managers
What is a manager, and what does it mean to serve in a managerial capacity?
Under the regulations a manager can include a manager of personnel, or a manager of an essential function. To show USCIS that you will serve primarily as a manager of personnel you must demonstrate you will primarily:
- Manages the organization, department, subdivision, function, or component of the organization;
- Supervise and control the work of other supervisory, professional, or managerial employees;
- Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
When a petition claims the beneficiary will serve as a manager of personnel, USCIS will typically focus the most on the type of personnel you will manage, and whether you will supervise and control the work of other supervisory, professional, or managerial employees.
For example, if you indicate you will oversee four direct reports, it would be important to demonstrate the reports are professionals, and that their positions require a degree in a related field to serve in the position. Similarly, if you claim you will oversee supervisors, it would be important to demonstrate your reports will oversee other reports and that the “supervisors” will perform supervisory duties.
Claiming a manager of personnel is a great option within an organization where you may not have other managers to direct but have a multi-tiered organization. Additionally, USCIS is generally going to scrutinize a smaller, her complex organization less where the beneficiary is claiming they will primarily serve as a manager versus an executive.
Understanding the Function Manager
To show USCIS that you will serve primarily as a manager of an essential function you must demonstrate you will primarily:
- Manage the organization or a department, subdivision, function, or component of the organization;
- Manage an essential function within the organization or a department or subdivision of the organization;
- Function at a senior level within the organizational hierarchy or with respect to the function managed; and
- Exercise discretion over the day-to-day operations of the activity or function for which the employee has authority.
If you claim you will be serving primarily as a function manager, USCIS will focus heavily on the duties you will primarily perform. If you claim you are a function manager but are primarily performing duties related to overseeing direct reports, then you would not be classified as a manager of an essential function, rather a manager of personnel.
This can be problematic in cases where your reports are not professional, and you do not oversee a multi-tiered organization. A first line supervisor will not be considered a manager or acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professionals.
Key Strategy: Questions and Tips to Consider
When deciding whether you should claim manager or executive, ask yourself:
- What are the reasonable needs of the organization regarding staffing?
- What does my organizational structure look like?
- What duties will the subordinates perform?
- Will any of the subordinates serve as professionals?
- Can I demonstrate any of the subordinates will serve in managerial positions?
- Will I perform operational duties, and to what extent?
Title alone will not be sufficient to demonstrate you serve as an executive or manager. A first line supervisor is not acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
Next Steps
As someone who previously adjudicated L-1 petitions, it was often perplexing when a petitioner would choose to classify a beneficiary as an executive over a manager in cases where they clearly did not qualify as an executive simply because there was no management to direct, but clearly, they could qualify as a manager. It is extremely important to understand the nuances of the visa classification you are seeking.
At Scott Legal P.C., we specialize in providing the legal strategy required to help you develop a successful L-1A petition. If you are ready to move forward, we encourage you to schedule a consultation with our legal team to develop a strategy tailored specifically to your immigration and business goals. For those still in the early stages of planning, you can browse our L-1 articles to stay informed, download our free L-1 Visa guide for a comprehensive overview, or register for our upcoming free L-1 Visa Webinar to learn about the latest trends and ask our experts questions directly.
