On August 16, 2022, US Citizenship and Immigration Services (USCIS), updated guidance on who qualifies for L1A Visa status. The L1A visa classification is available for US employers to transfer qualifying managerial and executive level employees from an affiliated foreign office to an office in the United States. We discuss the updated guidance from USCIS and who qualifies for an L1A Visa as a Manager or Executive.
Who qualifies for L1A visa status?
USCIS divides the L1A visa classification into two main subcategories of Executives and Managers (1)Function Managers, and (2) Personnel managers. USCIS defines the scope of managers and executives as follows:
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.
Front-line managers of nonprofessional employees DO NOT qualify for L1A visa status under this definition. Qualifying managers and executives must have a controlling function
Determining the Managerial or Executive Nature of the Job
US Citizenship and Immigration Services (USCIS) uses a two-part analysis to determine if a position is either managerial or executive. (A) Are the Job Duties Managerial or Executive? (B) Are the Job Duties Primarily Managerial or Executive?
(A) Are the Job Duties Managerial or Executive?
To determine managerial or executive capacity, officers must look first at 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. Officers are directed to focus on the primary duties of the beneficiary. When reviewing the duties, officers will consider the totality of the evidence in the record and weigh all relevant factors. Such as:
- 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.
(B) Are the Job Duties Primarily Managerial or Executive?
USCIS does not consider a beneficiary to be acting in a managerial or executive capacity 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.
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