Multinational companies that wish to transfer managerial employees to the United States now have clarification on the criteria required to do so. A new five-prong test adopted by U.S. Citizenship and Immigration Services (USCIS) speaks directly to the issue of which multinational employees can be considered “function managers.” The basis for this clarification was first set forth in the Administrative Appeals Office decision Matter of G- Inc., a case in which. USCIS adopted the Matter of G- Inc. decision in a policy memorandum, making it binding on all USCIS adjudication officers.
According to the new policy, to be classified as a multinational executive or manager, a visa beneficiary must have been employed abroad in either a managerial or executive capacity for at least one year. Additionally, the beneficiary must be seeking to work in a managerial or executive capacity in the United States for the same employer (or for its parent, affiliate, or subsidiary). The definition of “managerial capacity” includes both personnel managers and function managers. Personnel managers primarily supervise and control the work of other professional employees. Function managers primarily manage an “essential function” within an organization.
Pursuant to Matter of G- Inc., in order to establish that a visa beneficiary will be employed in managerial capacity as a “function manager,” the employer must first establish that the function is a clearly defined activity and is essential to the organization. Secondly, the employer must establish that its employee’s position meets the criteria for “managerial capacity” as defined in the Immigration and Nationality Act of 1965. Accordingly, in order to establish that an employee is a function manager, employers must satisfy the following five-prong test and demonstrate that:
- “the function is a clearly defined activity;
- the function is “essential,” i.e., core to the organization;
- the beneficiary will primarily manage, as opposed to perform, the function;
- the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
- the beneficiary will exercise discretion over the function’s day-to-day operations.”
Employers seeking to transfer managerial employees to the United States can use this policy memorandum as a guide to determine whether an employee can be transferred to the United States as a multinational function manager.
Ogletree Deakins, represented the prevailing party in the Matter of G- Inc. case.