Chapter 4 - Multinational Executive or Manager

A. Eligibility

Since 1990, the multinational executive or manager visa classification, which was formerly designated under the U.S. Department of Labor’s regulations as Schedule A Group IV, is now a separate visa classification.[1] A petitioning U.S. employer may file an Immigrant Petition for Alien Workers (Form I-140) on behalf of such an executive or manager. The petitioner must demonstrate that the beneficiary has a permanent job offer in a primarily managerial or executive position with a qualifying U.S. employer. A permanent labor certification is not required for this classification.[2] The petitioner must demonstrate that the beneficiary was employed abroad by a qualifying organization for 1 year out of the previous 3 years.[3]

The petitioning U.S. employer must have been doing business in the United States for at least 1 year before filing a petition for its managers and executives (a similar provision was in Schedule A Group IV).[4] Noncitizens seeking to enter the United States to open a new office are not eligible for the multinational executive or manager immigrant classification.[5] The executive or manager must be coming to an existing business in the United States.[6] This requirement was based in part on the pre-existing Schedule A, Group IV requirement.

The requirement was also based on the fact that, unlike in the case of a new office petition for a nonimmigrant intracompany transferee (L-1), which may only be extended upon a showing that the U.S. entity has been doing business for the previous year,[7] the multinational executive or manager immigrant visa classification is permanent in nature. Further, unlike the immigrant investor fifth preference visa, for example, there is no first preference “conditional resident” status that requires a review of the business after the beneficiary becomes a permanent resident in order for the beneficiary to continue in that status.

A petitioning U.S. employer must demonstrate that the beneficiary has been employed for at least 1 year by a related organization abroad to work in a capacity that is managerial or executive.[8] Managerial capacity includes personnel and function managers while executive capacity focuses on a person's position within an organization.

The petitioning U.S. employer must demonstrate that it and the related organization abroad:

  • Maintain a qualifying relationship; and

  • Are both actively engaged in doing business.

The petitioning U.S. employer must also show that it has been actively engaged in doing business for at least 1 year.[9] In addition, the petitioner must demonstrate that it has the ability to pay the beneficiary’s salary.[10]

B. Petitioner Requirements

When an employer wishes to transfer a noncitizen employee working abroad to a U.S. company location using the multinational executive or manager visa classification, a qualifying relationship must exist between the foreign employer and the petitioning U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent, or subsidiary of the foreign firm, corporation, or other legal entity.[11]

To establish a qualifying relationship under the statute and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (for example, a U.S. entity with a foreign office) or related as a parent and subsidiary or as affiliates. The officer must examine the factors of ownership and control when determining whether a qualifying relationship exists between the United States and foreign entities for purposes of this visa classification.[12]

Either the foreign or U.S. entity must own and control the other entity or both must be subsidiaries owned and controlled by the same parent entity or person.[13] In the context of this visa classification, ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control. Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.[14]

In situations where the petitioner has submitted documentation of a qualifying relationship based on control through possession of proxy votes, the petitioner must show that the proxy votes are irrevocable from the time of filing through the time of adjudication. Further, the petitioner must provide evidence demonstrating that the qualifying relationship will continue to exist until the beneficiary becomes a lawful permanent resident.

1. Subsidiary and Parent

The term subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:

  • More than half of the entity and controls the entity;

  • Half of the entity and controls the entity;

  • 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or

  • Less than half of the entity, but in fact controls the entity.[15]

While the term parent is not directly defined by the regulations, it is understood to mean the owner of a subsidiary.

2. Affiliate

There are three types of qualifying affiliate relationships:

  • One of two subsidiaries, both of which are owned and controlled by the same parent entity or person;

  • One of two legal entities owned and controlled by the same group of people, each owning and controlling approximately the same share or proportion of each entity; and

  • A partnership that is organized outside the United States to provide accounting services, along with managerial or consulting services, and markets those services under an internationally recognized name, as part of an agreement with a worldwide coordinating organization (of which the U.S. entity is a member) that is owned and controlled by the member accounting firms, partnership, or similar entity organized outside the United States.[16]

3. Limits on Petitions from Branch Offices and Nonimmigrants

Domestic offices of a foreign employer operated as a branch (that is, not as a separate, domestic legal entity) and nonimmigrants may not offer permanent employment to a beneficiary for the purpose of obtaining an immigrant visa for a multinational executive or manager.[17] The petitioner must be a U.S. citizen or a U.S. corporation, partnership, or other legal entity in order to file an immigrant visa petition for a multinational executive or manager. Therefore, while a U.S. corporation with a branch abroad may file a petition, a foreign corporation operating an office or division in the United States that is not a separate, domestic legal entity may not.[18]

4. Sole-Proprietorship

A sole proprietorship is a business in which an individual owns all the assets, owes all the liabilities, and operates the business in his or her personal capacity.[19] Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner.[20] A sole-proprietorship may not file a petition on behalf of the noncitizen owner, as such would be considered an impermissible self-petition.

There is a difference between a self-incorporated petitioner and a sole proprietorship. Although a self-incorporated petitioner may only have one owner or employee, a corporation is a separate and distinct legal entity from its owners or stockholders and therefore may petition for that owner or employee.[21]

5. Doing Business

Doing business means the regular, systematic, and continuous provision of goods or services or both by a qualifying organization. Doing business does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.[22]

Foreign Employer Must Continue to do Business

Both the U.S. employer and at least one qualifying organization abroad must continue to do business up until the time of visa issuance or adjustment of status.[23]

If the beneficiary’s foreign employer’s operations abroad cease entirely (for example, the company, together with all other otherwise qualifying related organizations, goes out of business or relocates completely to the United States) before the time of visa issuance or adjustment of status, the beneficiary is no longer be eligible for classification as a multinational executive or manager.

U.S. Employer Must Have Been Doing Business for At Least 1 Year

The U.S. employer must have been actively engaged in doing business for at least 1 year at the time of filing of the petition.[24] Therefore, a U.S. organization may have a legal existence in the United States for more than 1 year, but if it has not engaged in the continuous provision of goods and services for at least 1 year, the organization is ineligible to file petitions for multinational executives or managers.

C. Beneficiary Requirements

1. Managerial Capacity

The statutory definition of "managerial capacity" includes both "personnel managers" and "function managers."[25]

As it relates to personnel managers, managerial capacity means an assignment within an organization in which the beneficiary primarily:

  • Manages the organization, department, subdivision, function, or component of the organization;

  • Supervises and controls the work of other supervisory, professional, or managerial employees;

  • Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and

  • Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

Contrary to the common understanding of the word “manager” as any person who supervises others, the statute has a much more limited definition of the term manager. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.[26]

Further, if staffing levels are used as a factor in determining whether the beneficiary is functioning in a managerial or executive capacity, an officer should not merely rely on the number of employees the beneficiary is supervising, but should look at the beneficiary’s role and function within the organization.[27]

2. Function Managers

The term function manager, sometimes referred to as functional manager, applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization.[28]

In this context, the definition of the term manager includes function managers.[29] A manager may qualify for multinational manager or executive classification as a function manager if the petitioner can show, among other things, that the beneficiary has and will be primarily managing or directing the management of a function of an organization, even if the beneficiary did not or will not directly supervise any employees.

As it relates to function managers, managerial capacity means an assignment within an organization in which the beneficiary primarily:[30]

  • Manages the organization or a department, subdivision, function, or component of the organization;

  • Manages an essential function within the organization or a department or subdivision of the organization;

  • Functions at a senior level within the organizational hierarchy or with respect to the function managed; and

  • Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

The petitioner must clearly demonstrate, however, that the essential function being managed is not also being directly performed by the beneficiary. For example, in Matter of G-, the petitioner submitted evidence, including organizational and workflow charts, that indicated that the beneficiary led a financial planning and analysis (FP&A) team that oversaw the monthly revenue forecast process and collected financial data from delivery leads and global sales teams.[31]

The record reflected that the beneficiary would continue to be supported by six direct and three indirect reports. These personnel performed the routine duties associated with the FP&A function, enabling the beneficiary to primarily develop policies and goals and oversee the execution of long-term strategies. The petitioner demonstrated that this staff would continue to relieve the beneficiary from performing day-to-day administrative and reporting tasks, allowing him to primarily manage the FP&A function rather than perform it himself. That he supervised his direct reports did not detract from finding that he primarily manages the function.[32] In contrast, an employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.[33]

In applying the statute and applicable regulations to determine whether the beneficiary meets the definition of a function manager, the petitioner must show that the beneficiary will primarily manage that essential function by clearly describing the beneficiary’s duties and indicating the proportion of time dedicated to each duty.[34] While he or she may perform some operational or administrative tasks, the beneficiary must primarily manage the essential function.[35]

In addition, the petitioner must establish that the beneficiary will occupy a senior position in the petitioner’s organizational hierarchy or within the function managed and that the beneficiary will have discretionary authority over the day-to-day operations of that function.

USCIS considers all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization, that contribute to understanding the beneficiary’s actual duties and role in the business.[36]

An important, although not necessarily determinative, factor in determining whether a beneficiary qualifies as a function manager is the beneficiary's authority to commit the company to a course of action or expenditure of funds. Function managers perform at a senior level in the organization and may or may not have direct supervision of other employees.

3. Executive Capacity

The statutory definition of the term "executive capacity"[37] focuses on a person's position within an organization. To adjudicate a petition for a multinational executive or manager properly, therefore, the officer should have a basic understanding not only of the position the beneficiary intends to fill, but also of the nature and structure of the organization itself.

The term “executive capacity” means an assignment within an organization in which the employee primarily:

  • Directs the management of the organization or a major component or function of the organization;

  • Establishes the goals and policies of the organization, component, or function;

  • Exercises wide latitude in discretionary decision making; and

  • Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.[38]

USCIS does not consider a beneficiary an executive under the statute simply because he or she has an executive title or because some portion of his or her time is spent directing the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the beneficiary. In this regard, there must be sufficient staff (for example, contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function.

4. Evaluating Managerial or Executive Status

The petitioner must establish that the U.S. entity itself is in fact conducting business at a level that would require the services of a person primarily engaged in executive (or managerial) functions. In making this determination, an officer should consider, as appropriate, the nature of the business, including its size, its organizational structure, and the product or service it provides.

When examining the executive or managerial capacity of the beneficiary, an officer should look first to the petitioner's description of the job duties.[39] Specifics are an important indication of whether a beneficiary's duties are primarily executive or managerial in nature. Merely repeating or paraphrasing the language of the statute or regulations does not satisfy the petitioner's burden of proof.

If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary's job duties must demonstrate what proportion of the beneficiary's duties is managerial in nature, and what proportion is non-managerial. A beneficiary who primarily performs non-managerial or non-executive duties does not qualify as a manager or executive under the statutory definitions.

Additionally, officers should review the totality of the evidence, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, the employment and remuneration of other employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in the business. The evidence must demonstrate that the duties of the beneficiary and his or her subordinates correspond to their placement in the organization's structural hierarchy. Artificial tiers of subordinate employees and inflated job titles do not support a finding that the position is managerial.

For smaller organizations, the officer may request a description of the overall management and executive personnel structure supported by position descriptions for the managerial and executive staff members of the organization. For organizations that are substantial in size, the officer may request comparable descriptions for the organizational unit where the beneficiary is to be employed. As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[40]

If staffing levels are used to determine whether a beneficiary's job capacity is primarily executive or managerial in nature, an officer considers the reasonable needs of the business enterprise in light of its overall purpose and stage of development.[41] It is the petitioner’s burden to demonstrate the company’s reasonable needs with respect to staff or the organization’s structure.[42] However, in evaluating reasonable needs, an officer should not hold a petitioner to his or her undefined and unsupported view of common business practice or standard business logic.

As indicated above, a single-person office is not precluded from having that sole employee be classified as a multinational manager or executive, provided the requisite corporate affiliation exists and all other requirements are met. However, it may be very difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial or executive function.

While a sole employee will have some managerial or executive duties, simply to keep the business running, he or she will normally be spending the majority of his or her work time doing the day-to-day work of the business, that is, performing the type of duties that persons who would normally be employed in the business in question would perform.

However, an officer considers the totality of the record, including the nature and scope of the petitioner’s business and organizational structure, staffing levels, the beneficiary’s position and scope of authority, the work performed by other employees and whether it relieves the beneficiary from performing operational and administrative duties, and the reasonable needs of the organization as a whole.[43]

D. Evaluating Petitions Filed on Behalf of L-1A Nonimmigrants

In some cases, an officer may adjudicate an immigrant petition for a multinational executive or manager that was filed on behalf of a beneficiary who was previously granted L-1A nonimmigrant classification as a nonimmigrant manager or executive. Though the prior approval of an L-1A nonimmigrant petition on behalf of the beneficiary may be a relevant consideration in adjudicating the immigrant petition, the fact that the beneficiary was previously approved for L-1A classification is not binding if the facts do not support approval of the immigrant petition.

Eligibility as an L-1A nonimmigrant does not automatically establish eligibility under the criteria for an immigrant visa classification for a multinational executive or manager. Each petition is separate and independent and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions.

Notwithstanding the fact that each petition must be adjudicated on its own merits, some courts have asked USCIS to provide an explanation as to why, if the beneficiary had previously been classified in a roughly analogous nonimmigrant category, USCIS has determined that the beneficiary is not eligible for classification in the employment-based immigrant visa classification in question. For this reason, where possible, officers issuing denials in these cases should provide a brief discussion as to why, notwithstanding the previous L-1A nonimmigrant visa petition approval, the petitioner has failed to meet its burden to establish eligibility for approval of the immigrant petition for classification as a multinational executive or manager.

Unlike in the case of the L-1B nonimmigrant classification, there is no provision of law that allows a person who was or is employed in a purely specialized knowledge capacity abroad to be classified as a “specialized knowledge” multinational executive or manager immigrant classification.

However, it should be noted that some beneficiaries who are classified as L-1B nonimmigrants might qualify for the multinational executive or manager immigrant classification because their specialized knowledge and employment abroad also would have qualified as managerial or executive employment and because the petitioners intend to employ them in managerial or executive positions on a permanent basis.

Footnotes


[^ 1] See INA 203(b)(1)(C).

[^ 2] See INA 212(a)(5)(D). See 8 CFR 204.5(j)(5).

[^ 3] See 8 CFR 204.5(j)(3)(i)(A). See Matter of S-P-, Inc. (PDF, 116.06 KB), Adopted Decision 2018-01 (AAO Mar. 19, 2018). This decision clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least 1 year, but left the organization for a period of more than 2 years after being admitted to the United States as a nonimmigrant, does not satisfy the 1 year of the previous 3 years foreign employment requirement for immigrant classification as a multinational manager or executive. To cure the interruption in employment, such a beneficiary would need an additional year of qualifying employment abroad before he or she could once again qualify. Unlike the L-1 nonimmigrant classification, the year of qualifying employment does not have to be “continuous.” Compare INA 101(a)(15)(L) (requiring that the beneficiary have been employed “continuously” abroad for the 1-year period) with INA 203(b)(1)(C) (requiring that the beneficiary be employed abroad for “at least 1 year.”)

[^ 4] See 8 CFR 204.5(j)(3)(i)(D).

[^ 5] The ability to enter the United States to open a new office is limited to the L-1 nonimmigrant classification. See 8 CFR 214.2(l)(3)(v).

[^ 6] See 8 CFR 204.5(j)(3)(D).

[^ 7] See 8 CFR 214.2(l)(14)(ii).

[^ 8] See INA 203(b)(1)(C). See 8 CFR 204.5(j).

[^ 9] See 8 CFR 204.5(j)(3).

[^ 10] See 8 CFR 204.5(g)(2).

[^ 11] See 8 CFR 204.5(j)(2).

[^ 12] See INA 203(b)(1)(C). See 8 CFR 204.5(j)(2) (definitions of affiliate and subsidiary).

[^ 13] See 8 CFR 204.5(j)(2) (definition of affiliate and subsidiary).

[^ 14] See Matter of Church Scientology International (PDF), 19 I&N Dec. 593 (Comm. 1988).

[^ 15] See 8 CFR 204.5(j)(2).

[^ 16] See 8 CFR 204.5(j)(2) (definition of affiliate).

[^ 17] See Matter of Thornhill (PDF), 18 I&N Dec. 34 (Comm. 1981).

[^ 18] While the L-1 nonimmigrant visa regulations allow for a branch office to petition for a manager or executive, the immigrant visa regulations do not permit a foreign branch office to petition for a multinational executive or manager. The nonimmigrant regulations define the term branch as "an operating division or office of the same organization housed in a different location." See 8 CFR 214.2(l)(1)(ii)(J).

[^ 19] See Black's Law Dictionary (11th Ed. 2019).

[^ 20] See Matter of United Investment Group (PDF), 19 I&N Dec. 248, 250 (Comm. 1984).

[^ 21] See Matter of M- (PDF), 8 I&N Dec. 24, 50 (BIA 1958, AG 1958). See Matter of Aphrodite Investments Limited (PDF), 17 I&N Dec. 530 (Comm. 1980). See Matter of Tessel (PDF), 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).

[^ 22] See 8 CFR 204.5(j)(2). Doing business does not require that the petitioner provide either goods, services, or both to an unaffiliated third party; providing goods or services in a regular, systematic, and continuous manner to related companies is sufficient. See Matter of Leacheng International, Inc. (PDF), 26 I&N Dec. 532 (AAO 2015).

[^ 23] See Matter of F-M-Co (PDF, 231.04 KB), Adopted Decision 2020-01 (AAO May 5, 2020). This decision clarifies that for first preference multinational executives or managers, a petitioner must have a qualifying relationship with the beneficiary’s foreign employer at the time the petition is filed and must maintain that relationship until the petition is adjudicated. The decision also clarifies that in the event a corporate restructuring affecting the foreign entity occurs prior to the filing of the petition, a petitioner may establish that the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.

[^ 24] See 8 CFR 204.5(j)(3)(i)(D). There is no “new office” provision for persons seeking to immigrate under the multinational executive or manager category as there is for certain noncitizens who seek admission as L-1 nonimmigrants in order to open or be employed in a new office in the United States. See 8 CFR 214.2(l)(3)(v).

[^ 25] See INA 101(a)(44)(A)(i)-(ii).

[^ 26] See INA 101(a)(44)(A). See 8 CFR 204.5(j)(4)(i).

[^ 27] See 8 CFR 204.5(j)(4)(ii).

[^ 28] See INA 101(a)(44)(A)(ii). See Matter of G-, Inc. (PDF, 130.68 KB), Adopted Decision 2017-05 (AAO Nov. 8, 2017), which analyzes the requirements for a function manager and concludes: “In sum, to establish that the beneficiary will be employed in a managerial capacity as a ’function manager’ the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is ’essential,’ that is, core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.”

[^ 29] See INA 101(a)(44)(A).

[^ 30] See 8 CFR 204.5(j)(2).

[^ 31] See Matter of G- (PDF, 130.68 KB), Adopted Decision 2017-05 (AAO Nov. 8, 2017).

[^ 32] See Matter of G- (PDF, 130.68 KB), Adopted Decision 2017-05 (AAO Nov. 8, 2017).

[^ 33] See Boyang, Ltd. v. INS, 67 F.3d 305 (9th Cir. 1995) (citing Matter of Church Scientology International (PDF), 19 I&N Dec. 593, 604 (Comm. 1988)).

[^ 34] See 8 CFR 204.5(j)(5).

[^ 35] See Matter of G- (PDF, 130.68 KB), Adopted Decision 2017-05 (AAO Nov. 8, 2017).

[^ 36] See Matter of G- (PDF, 130.68 KB), Adopted Decision 2017-05 (AAO Nov. 8, 2017).

[^ 37] See INA 101(a)(44)(B).

[^ 38] See INA 101(a)(44)(B).

[^ 39] See 8 CFR 204.5(j)(5).

[^ 40] See INA 204(b).

[^ 41] See INA 101(a)(44)(C). See 8 CFR 204.5(j)(4)(ii).

[^ 42] See INA 101(a)(44)(C).

[^ 43] See Matter of Z-A-, Inc. (PDF, 162.89 KB), Adopted Decision 2017-05 (AAO April 14, 2016).

Current as of July 22, 2021