The USCIS policy manual outlines the L-1A classification which is designated for certain managers and executives. The definition of executive or managerial capacity involves having a specific level of authority and engaging in tasks related to planning, organizing, directing, and controlling an organization’s major functions. In case of executives USCIS wants to see policy-setting powers. It is important to remember that first-line supervisors and those primarily involved in production tasks are not considered managers or executives, even if referred to as such.
The criteria for determining managerial or executive capacity include examining the petitioner’s job description to ensure that the duties are predominantly of an executive or managerial nature. The beneficiary need not perform the same work in the United States as abroad, but the work abroad must have been in a managerial or executive capacity outside the United States. Moreover, USCIS looks to see if the transferee has the background and skillset for the new position in the U.S.
To assess job duties, officers consider factors such as the nature and scope of the petitioner’s business, organizational structure, staffing levels, the beneficiary’s authority, work performed by other staff, and any other relevant factors.
USCIS emphasizes that technical or professional expertise can be applied incidentally but underscores that the beneficiary must be primarily engaged in a managerial or executive capacity. In many cases RFEs are issued to determine exact percentages an employee will designate to each task previously listed in submitted documents.
The USCIS policy manual specifies that the number of supervised or directed employees alone does not determine managerial or executive capacity. Staffing levels should be considered in the context of the organization’s reasonable needs. Expect challenges or questions where USCIS finds that something is not making sense for the size of the organization, even if all regulations are being met in your case.
Additionally, the beneficiary may own the foreign or U.S. organization but must be actively involved in management, not just hold a ceremonial title. Ownership may become an issue as USCIS looks for employer-employee type relationship for L-1A capacity despite ownership interest.
In summary, the USCIS policy manual provides guidance on the L-1A classification, emphasizing the need for beneficiaries to primarily engage in managerial or executive capacities based on a comprehensive evaluation of job duties and organizational factors.
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:
USCIS policy manual – Chapter 3 – Managers and Executives (L-1A)
- 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.