The L-1 visa allows U.S. companies that have a qualifying relationship with an active company abroad to transfer certain employees to the U.S. The employees must either be executives, managers or specialized knowledge workers and must have worked for the company abroad for at least one continuous year out of the past three years. There are specific definitions of who qualifies as an executive, manager or specialize knowledge worker and unfortunately U.S. Citizenship & Immigration Services (USCIS) can be quite rigid about applying these definitions.
For the L-1A visa, a manager is defined in the regulations as an employee who primarily does the following:
- 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.
Below we will discuss some important things for employers to keep in mind when determining if an employee will qualify as a manager for L-1A purposes.
- A managerial job title is not enough – Having the word “manager” in the job title is not sufficient. USCIS will look at the job duties of the employee to determine if they qualify as a manager under the regulatory definitions.
- Consider the staffing hierarchy – Employees who manage front-line workers will generally not qualify. In order to be considered a manager for L-1A purposes, the employee must other managers and supervisors or manage professional employees (meaning employees whose role requires a bachelor’s degree).
- If the employee manages an essential function they may qualify even if they do not have many direct subordinates – One exception to the rule above is if the employees manages an essential function within the company. If the employee is qualifying as a function manager, then the focus will be on defining the function, showing it is essential to the organization, showing how the employee manages the function (as opposed to performing it) and showing how the employee acts at a senior level and exercises discretion over the operation of the essential function.
- Provide information about the job duties, salary and education of the employees’ subordinates – USCIS will often ask for more information about the job duties, salary, education levels and reporting relationships of the employee’s subordinates to make sure they qualify as managerial, supervisory or professional employees.
- Provide documentary evidence to support the description of job duties – If you have emails, work product, policy handbooks, or other similar documents that confirm the employee performs the job duties listed in the employer support letters, these documents can be helpful to include in the petition.
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