L-1A Intracompany Transfers: What is Managerial Capacity or Executive Capacity?
The L-1A petition allows U.S. employers to apply for non-immigrant temporary employment visas for those employees that have been serving in a managerial capacity or an executive capacity for at least one consecutive year within the last three years in a foreign branch, parent, subsidiary, or affiliated company. These visas last only one year. However, the employer may extend it in two-year increments for up to seven years. Moreover, if the employer desires to hire the beneficiary as a permanent employee in the U.S., the employer may sponsor the employee for permanent residence through an EB-1 application. EB-1 is an extensive process and will be covered in a separate posting.
In order for the USCIS to approve your petition for L-1A, you must prove
(1) that the beneficiary was a manager/executive or held specialized knowledge for at least 1 year within the last 3 years prior to the application for the foreign company,
(2) that the beneficiary will be assuming a managerial/executive role for the U.S. employer, and
(3) that the U.S. employer is a branch, parent, subsidiary, or affiliated with the foreign company by showing at least 50% control that is vested in the parent (whether the parent is the foreign company or the U.S. employer).
“Managerial capacity” has been defined by the Immigration and Nationality Act (INA) as an
assignment within an organization in which the beneficiary primarily
(1) manages the organization, or a department, subdivision, function, or component or 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) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed ;
(4)Exercises discretion over the day-to-day operations of the activity or function for which
the employee has authority. INA § 101(a)(44)(A).
“Executive capacity” has been defined by the INA as an assignment
with an organization in which the employee primarily
(1) directs the management of the organization or a major component or function of the
(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.INA § 101(a)(44)(B).
At first glance, these definitions may be intimidating. What you believe is the definition of managerial or executive capacity may be different from USCIS’s definition of managerial or executive capacity. Zhang-Louie, Immigration Legal Counsel can help you align your definition with the INA’s definitions and ensure that your L-1A petition is not denied for the lack of managerial or executive capacity as defined under the Immigration and Nationality Act. Contact us at 978-482-7728 to find out how we can help.