USCIS Policy Memo on Requirements for Functional Managers13 Dec 2017
The U.S. Citizenship and Immigration Services (USCIS) has issued a policy memorandum dated November 8, 2017 that provides guidance for officers adjudicating L1A petitions for function managers. This memo is based on the ruling from the administrative appeals office (AAO) in Matter of G- Inc., which is now an adopted decision.
Background: Function Managers
The L1A nonimmigrant visa category is reserved for multinational managers and executives. Per the Immigration and Nationality Act (INA), a managerial position is one in which the foreign national controls and supervises the work of other qualifying employees or manages an essential function. While the rules related to overseeing employees are fairly well established, there has been less clarity regarding what is required to qualify as a manager of an essential function – often referred to as a “function manager” or “functional manager.”
USCIS Memo Lists Five Prongs for a Functional Manager
The policy memo adopts a five-prong test, established by the AAO in Matter of G- Inc. that must be satisfied to qualify as a functional manager.
1) The function is a clearly defined activity.
2) The function is “essential” (i.e., core) to the organization.
3) The L1A worker will primarily manage, as opposed to perform, the function.
4) The worker will act at a senior level within the organizational hierarchy or with respect to the function managed.
5) The worker will exercise discretion over the function’s day-to-day operations.
It should be noted that all but the first prong of this test is largely taken verbatim from the INA. There is additional analysis of each prong in Matter of G- Inc. that should provide at least some additional insight for stakeholders to help determine whether an employee may qualify as a functional manager.
The functional manager designation has long been a perplexing area of the law. The idea that someone can manage an essential function, yet not actually perform the function, is a confusing concept. This policy memo, hopefully, will clarify the requirements, at least to a degree, for an L1A function manager position.
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