The Law: Work Visas for Multinational Managers

By Rebecca Sigmund and John Hill 
Ogletree Deakins South Carolina

In the midst of a flurry of recent immigration-related news items and changes proposed by the Trump Administration, one change seems to have slipped under the radar – a change that may impact multinational companies in South Carolina.

It is common practice for multinational companies to transfer experienced managers from a foreign affiliate of the organization to a U.S. location to manage U.S. operations or key projects.  Typically, such managers obtain a work visa known as the L-1A visa category.  The criteria that must be met to qualify for the L-1A category is essentially the same as the green card category for managers of multinational companies.  So, the L-1A category is sometimes viewed as a “stepping stone” to a green card.

The U.S. immigration rules recognize two types of managers for these purposes.  The first is one who manages an organization (or a department, subdivision, or component of the organization) that has tiers of employees.  In other words, the manager must supervise and control the work of supervisory, management, or professional employees who, in turn, control the work of subordinate employees, and the manager must have the authority to hire and fire or recommend personnel decisions.  These managers are sometimes referred to as “people managers.”  For these purposes, first line supervisors are not considered to be managers unless they supervise professional-level workers.

The second type of manager may not be as obvious and is referred to as a “function manager.”  A function manager usually does not supervise subordinate employees.  Rather, a function manager controls an essential function of the organization at a senior level.  Examples may include positions such as a controller, or even a high level project manager.

For years, U.S. Citizenship and Immigration Services (CIS) has pushed back on function manager visa petitions and subjected them to heightened scrutiny – even though function managers are clearly permitted by the regulations.  One reason has been the nebulous understanding of what makes a function essential.

In November, the CIS Administrative Appeals Office (AAO) issued a decision known as Matter of G–, Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), which clarifies when a manager manages an essential function.  The CIS Director quickly adopted the decision as policy guidance binding on all CIS employees and directed CIS Officers to follow the AAO’s reasoning to determine when an L-1A or green card applicant qualifies as a function manager.

The decision laid out a five-prong test to make this determination.  First, the function must be a clearly defined activity and the application must describe with specificity the activity to be managed.  Second, the function must be essential; i.e., core to the organization.  Third, the foreign worker must primarily manage – as opposed to perform — that essential function.  The application must describe the function manager’s duties and the percentage of time dedicated to each duty.  Some operational or administrative tasks are acceptable, but the manager must primarily manage the essential function.  Fourth, the function manager must occupy a senior position within the organization’s hierarchy, or the function managed.  Fifth, the function manager must exercise discretion over the day to day operations of that function.

The new criteria should provide clarity to this work visa category as it pertains to function managers, eliminate much of the misunderstanding that has been associated with this category, and reduce future scrutiny by CIS officers as well as their reluctance to approve function managers as qualified for the L-1A visa and/or related green card category.  More importantly, the criteria should provide multinational companies in South Carolina with useful guidance in selecting function managers for assignments in the United States and successfully securing a work visa for them.

Ogletree Deakins

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone.  Contact John Hill at [email protected] or Rebecca Sigmund at [email protected] .