The L-1A Visa: Park Evaluation’s 101 Guide
By Ryan Mernin
In a previous post, the team at Park Evaluations offered some insight into the L-1A visa and its basic criteria, as well as how an expert letter from Park could help meet USCIS’ various challenges. Here, we will take a deeper dive into the various definitions of managerial capacity and the hidden nuances therein.
Managerial Capacities: Personnel, Functional, Executive
Much has been said of the coveted and rather more difficult to obtain L-1A visa. Like its counterpart, the L-1B, this is ideal for a more senior employee transferring from an affiliate abroad to the office of the petitioner in the U.S.
Whereas most candidates will apply using the standard “personnel manager,” otherwise known as “managerial capacity” criteria as laid out by USCIS, there are slightly altered sets of criteria for executives and for managers who are not directly managing subordinate employees in their departments. In gathering resources for a petition, it is important to select the appropriate definition and to provide a suitable analysis that matches the agency’s requirements.
The most frequently used definition of managerial capacity in L-1A visa filings is that of a Personnel Manager, who is primarily distinguished from both lower-level employees and functional managers – discussed below – by the responsibility to directly manage subordinate professionals. As per the exact USCIS criteria, anyone using this definition should directly oversee professional level employees, or people with at least a Bachelor’s degree. There are four criteria in this case, which may be summarized as:
- Manages of a department or some specific business component
- Supervises subordinate professionals
- Makes personnel decisions (such as hiring, time off, salary, etc.)
- Directs the day-to-day operations of the department or component under their control
The first of these – management of a department or specific unit of the business – can be rather difficult to pin down; as much as today’s corporations may love to cobble together baroque organizational charts, not every person in charge of managing people and specific tasks will find that their role is clearly articulated in the top-level structuring of the company. It is often the job of the attorney (as well as the team of experts at Park) to appropriately qualify the work overseen by the candidate as belonging to a specific business component. Likewise, the fourth criterion requires that candidates be able to describe not only the high-level strategy and business development work incumbent on their role, but also the direction and support they provide to their subordinates in carrying out the productive work of their department.
The Functional Manager definition comes with a slightly different set of criteria, paraphrased below, but is typically used in cases where, in either the U.S. or foreign position, the candidate is not directly managing their subordinate employees:
- Manages what’s termed an “essential function” of the organization
- The function itself is essential to the operations of some larger unit of the business (such as a department)
- Directs the day-to-day operations of the function, rather than performing it
- The organization employs professionals to carry out the productive activities of the function (thereby relieving the candidate of that work)
- Acts at a senior level either in the organization as a whole, or with respect to the function
There is, you will observe, very similar to the previous definition. Indeed, it is still required that the business component (or “essential function” in this case) be comprised of subordinate employees carrying out its day-to-day productive tasks. The difference, however, is that Functional Managers are not responsible for directly supervising this work, though they still maintain their high-level responsibilities in terms of ensuring that the function is successfully managed. A bit nitpicky, perhaps, but a definition which can be very useful for L-1A beneficiaries who cannot demonstrate that they managed direct reports.
This one is more straightforward: is the candidate an executive at the company? This does, however, still come with its own unique set of criteria which must be met, regardless of job title. These are:
- Directs the management of the organization as a whole, or else some major business component or department
- Establishes the policies, goals, and internal procedures of the company
- Exercises wide latitude in discretionary decision making
- Receives only general supervision from more senior executives, the board, or stockholders
This definition stands somewhat alone, and clearer, maintains a higher threshold than the other two. This should be used only for the most senior-level employees at an organization, who would themselves be responsible for profitability, growth, and other strategic indicators.
It should be noted that a given case can mix-and-match these definitions for the U.S. and foreign positions, and that it is quite often the case that an employee who abroad operated as a personnel manager might come to the U.S. to take on a new role managing an essential function, without direct reports. At Park, we’re always happy to consult on a given case, and work with our experts to ensure that these arguments are effectively applied – both in the petition and the accompanying L-1A expert letter.
To request an L-1A expert letter, email [email protected].