The L-1A classification is reserved for certain managers and executives.[1] Executive or managerial capacity requires a certain level of authority and can consist of a mix of job duties.[2] There are two main types of managers, function managers and personnel managers.[3] Managers and executives plan, organize, direct, and control an organization’s major functions and work through other employees to achieve the organization’s goals. First-line supervisors, such as those who plan, schedule, and supervise the day-to-day work of nonprofessional employees, are not employed in an executive or managerial capacity, even though they may be referred to as managers in their organization.
In addition, persons who primarily perform the tasks necessary to produce the product or provide the service of an organization are not employed in an executive or managerial capacity.[4]
The same managerial and executive capacity definitions apply to the nature of the beneficiary’s position abroad and in the United States. However, the beneficiary need not perform the same work in the United States that they performed abroad.[5]In addition, the work abroad may have been in more than one capacity.
A. Determining Managerial or Executive Job Duties
To determine managerial or executive capacity, officers must look first to the petitioner’s description of the job duties to determine that the duties are primarily of an executive or a managerial nature. This standard ensures that a beneficiary not only has the requisite authority, but that a majority of their duties relate to operational or policy management, not to the supervision of nonprofessional employees, performance of the duties of another type of position, or other involvement in the operational activities of the company.
This does not mean that the executive or manager cannot apply their technical or professional expertise to a particular problem. Certain positions necessarily require a manager to apply their technical or professional expertise on an incidental basis from time to time, and that is permissible. That said, the regulations specifically require that the beneficiary be engaged primarily in a managerial or executive capacity. Accordingly, officers should focus on the primary duties of the beneficiary in determining whether the beneficiary qualifies as a manager or executive.
To determine whether a beneficiary’s job duties will be primarily managerial or executive, an officer must consider the totality of the evidence in the record and weigh all relevant factors. Such factors may include:
The nature and scope of the petitioner’s business;
The petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization;
The scope of the beneficiary’s authority;
The work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and
Any other factors that contribute to understanding a beneficiary’s actual duties and role in the business.[6]
B. Determining Whether Job Duties are Primarily Managerial or Executive
USCIS does not consider a beneficiary to be acting in a managerial or executive capacity (as previously defined) merely based on the number of employees that they:
Supervise or have supervised; or
Direct or have directed.
If staffing levels are used as a factor in determining whether a beneficiary is acting in a managerial or executive capacity, officers should consider the reasonable needs of the:
Organization;
Component; or
Function.
L-1 Beneficiary May Own the Organization
The beneficiary may own the foreign or U.S. organization in whole or in part. However, maintaining a ceremonial title and position, such as Director or President, without being primarily engaged in the management of the organization, is not qualifying for L-1 purposes.[7]
Footnotes
[^ 1] For the definitions of L-1 executives and managers, see INA 101(a)(44), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). Notably, in the legal construction of the L-1A regulations, there is no clause of “and” or “in addition to” or any other qualifier between 8 CFR 214.2(l)(1)(ii)(B) governing L-1A managerial beneficiaries and 8 CFR 214.2(l)(1)(ii)(C) governing L-1A executive beneficiaries that requires beneficiaries to meet the regulatory criteria of both discreet subcategories for L-1A beneficiaries. Therefore, a beneficiary is either an L-1A manager under 8 CFR 214.2(l)(1)(ii)(B) or an L-1A executive under 8 CFR 214.2(l)(1)(ii)(C), meeting either one criteria or the other. A beneficiary does not have to meet both.
[^ 2] For definitions of executive and managerial capacity, see Chapter 6, Key Concepts [2 USCIS-PM L.6].
[^ 3] For more information on function managers, see Chapter 6, Key Concepts, Section C, Managerial Capacity, Subsection 2, Function Manager [2 USCIS-PM L.6(C)(2)].
[^ 4] See Matter of Church Scientology Int’l (PDF), 19 I&N Dec. 593 (Comm. 1988).
[^ 5] For example, someone who had specialized knowledge abroad could enter the United States as a manager or executive. See 9 FAM 402.12-12(F), Beneficiary Need Not Perform Same Work in the United States as Abroad.
[^ 6] See Matter of Z-A-, Inc. (PDF), Adopted Decision 2016-02 (AAO Apr. 14, 2016). While the case does not address whether a beneficiary will be working primarily as a manager of personnel or as an executive, and the analysis should not be used in those cases, officers should continue to analyze L-1A petitions where the position is for a personnel manager or an executive as they were doing before Matter of Z-A-, Inc. was designated as an adopted decision.
[^ 7] See Matter of Aphrodite Investments (PDF), 17 I&N Dec. 530 (Comm. 1980).
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