L-1A Intracompany Transferree Qualifying Work Experience Abroad
The L-1 Visa category is broken into two sub-categories; the L-1A and L-1B. A company wishing to transfer a beneficiary to the United States to fill the role of an Executive or Manager would petition for the L-1A, and a company transferring a beneficiary to fill a position in the United States that requires specialized knowledge would petition for an L-1B.
In my last article I wrote about the one-year employment abroad requirement for beneficiaries. I left for this article the requirement that while the beneficiary was employed abroad during the qualifying period, he must have been working as an executive, manager, or in a position that required specialized knowledge.
Manager vs. Executive
While to some these titles may seem interchangeable, but to the United States Citizenship and Immigration Services they are different. What exactly qualifies a position as managerial or executive in nature has been the subject of many immigration cases and appeals and has been widely written about. This article will touch on the basic concepts and should not be relied on for interpreting or predicting whether a particular position will be considered as such by USCIS.
CFR §214.2(l)(1)(ii)(B): Managerial capacity means an assignment within an organization in which the employee primarily:
1. Manages the organization, or a department, subdivision, function, or component of the organization;
2. 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;
3. 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
4. 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.
Generally speaking, a managerial position will be at a high level on your company’s organization chart with several layers of subordinate employees beneath the manager. The manager will operate with very little supervision or oversite, have the power to hire and fire, and be responsible for the performance and actions for those employees supervised. In some cases, a front line supervisor position will be considered managerial if the employees supervised are licensed professionals such as engineers or accountants. USCIS will consider the depth of the personnel structure managed by the beneficiary, but a small number of people alone cannot be the basis of a L-1 rejection. USCIS must consider the specific needs of the employer.
CFR §214.2(l)(1)(ii)(C): Executive capacity means an assignment within an organization in which the employee primarily:
1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision-making; and
4. Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
I wish there was a clear distinction that could be drawn between the executive and managerial positions, but if you look at the language of the statute, much of the descriptions are similar. It is safe to conclude that an executive position will be close to the top of an organization chart. The managerial position allows some flexibility for larger companies to transfer managers that, while several layers below executives, have supervisory authority over other employees themselves. An experienced immigration attorney will be able to help you ascertain which of the foregoing classifications your beneficiary’s position abroad fits into and how to prove it.
In lieu of the managerial or executive position abroad, a beneficiary could also have been employed in a specialized knowledge capacity. The kinds of jobs that typically fall in this category are those that require expertise or experience that is uncommon or distinct in comparison with the rest of the particular industry. An adjudicating officer would consider a beneficiary’s expertise in the petitioning company’s processes, products, and technology as relevant when making its decision.
CFR §214.2(l)(1)(ii)(D) and (E): (D) Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. (E) "Specialized knowledge professional" means an individual who has specialized knowledge as
defined in paragraph (l)(1)(ii)(D) of this section and is a member of the professions as defined in section 101(a)(32) of the Immigration and Nationality Act.
Regardless of whether you are petitioning for the L-1A or B, for the purpose of determining the qualifying one year of employment abroad, your beneficiary may have been employed in any of the three discussed classifications; managerial, executive, or specialized knowledge. In choosing an immigration lawyer, make sure you select one that is familiar with the industry you work in. It is relatively easy to say whether your beneficiary fits in to one of the categories above, it is another to prove it to USCIS. A lawyer familiar with your type of business will know the best documentation you have that will satisfy the adjudicating officer that is reviewing your petition.