The L-1 Category for Managers

The L-1 category is utilized by multinational companies to transfer managerial, executive, and specialized knowledge employees from a foreign entity to a parent, subsidiary, affiliate, or branch office in the United States. To qualify, a petitioner must prove that it has a qualifying relationship with the transferee’s foreign employer and that it is doing business as an employer in the U.S. and in at least one other country abroad. It must then be shown that the intracompany transferee has been employed abroad by the foreign employer for at least one continuous year in the past 3 years in a full-time managerial, executive, or specialized knowledge position and that he or she will provide services in a managerial executive, or specialized knowledge position for the petitioner in the U.S.

Definition of Manager under U.S. Immigration Law

When applying for L-1 status as a manager, it is important to understand what it means to be a manager under U.S. immigration law. Section 101(a)(15)(L) of the Immigration and Nationality Act defines “managerial capacity” as an assignment within an organization in which the employee primarily: 

1. Manages the organization, or a department, subdivision, function, or component of 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; and

4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.^[1]

To qualify for L-1 status as a manager, a petitioner must provide evidence illustrating how the employee satisfies each of the four prongs identified in the definition. If any of these four prongs is missing, an individual does not qualify and an application for L-1 status will not be approved.

Personnel Managers v. Function Managers

As detailed above, the definition of managerial capacity allows for both “personnel managers” and “function managers.” Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees; whereas, function managers must primarily manage an essential function within the organization.^[2]

With personnel manager applications, it is important to clearly demonstrate how the applicant manages and supervises other supervisors, managers, or professionals. A first-line supervisor does not qualify for L-1 status. Alternatively, the key to a successful function manager application is to identify the essential function and describe in detail the job duties performed in managing that function. It is necessary to articulate how vital both the role of the applicant and function the applicant manages is to the company’s daily operations. In addition, it is also necessary to highlight the personnel responsible for performing the essential function on a day-to-day basis because the government needs to see how the applicant primarily manages, as opposed to performs, the essential function. 

To help illustrate the difference between a function manager and a personnel manager, consider the following example:

Business A is an engineering firm that has been hired by Business B to develop and install sophisticated machinery, and both companies have agreed that the project will be completed in three phases – phase one is development, phase two is installation, and phase three is commissioning. Mike Matheson is Business A’s Engineering Manager. In this position, he is primarily responsible for overseeing and managing a team of professional engineers. Jeff Jamison, on the other hand, is Business A’s Commissioning Manager and is responsible for managing the entire commissioning phase of Business A’s projects worldwide. Mr. Jamison does not directly manage employees; rather, he is always supported by a team of technicians and independent contractors that perform project commissioning in the field. Mr. Jamison simply provides the leadership, oversight, and management necessary to complete the commissioning phase of Business A’s projects. 

In this example, Mr. Matheson is clearly a personnel manager. He spends most of his time managing a team of professional engineers, and an L-1 application on his behalf would need to illustrate that through documentary evidence, such as an organizational chart. Mr. Jamison, however, does not manage personnel; rather, he manages an essential function of Business A’s operations. An L-1 application on behalf of Mr. Jamison, would need to explain why project commissioning is an essential function, how Mr. Jamison oversees and manages the project commissioning function, and what personnel support Mr. Jamison in the field by performing the actual commissioning duties. 

Standard of Proof in L-1 Adjudications

In addition to understanding the definition of “manager”, it is also important to know what standard of proof is being used by the government when reviewing L-1 applications. This is critical because it influences the amount and type of evidence that is required when submitting a petition. 

The standard of proof applied in L-1 adjudications is the “preponderance of the evidence” standard. This means that the evidence must demonstrate that an applicant’s claim is “probably true” or “more likely than not.”^[3] Preponderance of the evidence is not evidence that must establish beyond a doubt that the applicant is eligible for L-1 status.^[4] A petitioner can still establish an employee’s eligibility despite doubts held by the adjudicator. In addition, preponderance of the evidence is also not the clear, unequivocal, and convincing standard applicable in deportation proceedings.^[5] A petitioner does not have to prove by clear, unequivocal, and convincing evidence that it has established an employee’s eligibility for L-1 status. Preponderance of the evidence requires a lesser showing than these two standards. As described by one court, “in American law a preponderance of the evidence is rock bottom at the fact finding level.”^[6] Thus, in reviewing an application pursuant to the preponderance of the evidence standard, the adjudicator must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.

How to Submit an L-1 Application

For citizens of Canada, an L-1 petition can be filed with U.S. Customs and Border Protection (CBP) at a port-of-entry. A decision is normally issued on the spot, and, upon approval, the transferee can immediately begin working in the United States. 

For all other nationalities, an L-1 application is a two-step process. First, a petition is filed through the mail with U.S. Citizenship and Immigration Services (USCIS). Once approved, the transferee must then schedule and attend an L-1 visa interview at a U.S. Embassy or Consulate abroad before traveling to the United States.

Conclusion

The L-1 category is utilized by multinational companies all over world to transfer key staff members to the United States. If you are interested in applying for L-1 status on behalf of yourself or for one of your employees, contact our office today to schedule a consultation.

^[1] 8 U.S.C. § 101(a)(44)(A); see also 8 C.F.R. § 214.2(l)(1)(ii)(B) (defining “managerial capacity”).

^[2] See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016).

^[3] See Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010).

^[4] Id.

^[5] See Woodby v. INS, 385 U.S. 276 (1966).

^[6] Charlton v. FTC, 543 F.2d 903, 907 (D.C. Cir. 1976).