USCIS Adopts AAO Decision on Standard of Review in L-1A Petitions for Essential Function Managers | Practical Law

USCIS Adopts AAO Decision on Standard of Review in L-1A Petitions for Essential Function Managers | Practical Law

US Citizenship and Immigration Services (USCIS) recently released a policy memorandum designating the decision of the Administrative Appeals Office (AAO) in Matter of Z-A-, Inc. as an Adopted Decision 2016-02, resulting in policy guidance for USCIS adjudications officers on the standard of review they should use in evaluating essential function manager petitions for L-1A status.

USCIS Adopts AAO Decision on Standard of Review in L-1A Petitions for Essential Function Managers

by Practical Law Labor & Employment
Published on 26 Apr 2016 • USA (National/Federal)
US Citizenship and Immigration Services (USCIS) recently released a policy memorandum designating the decision of the Administrative Appeals Office (AAO) in Matter of Z-A-, Inc. as an Adopted Decision 2016-02, resulting in policy guidance for USCIS adjudications officers on the standard of review they should use in evaluating essential function manager petitions for L-1A status.
On April 14, 2016, US Citizenship and Immigration Services (USCIS) released a policy memorandum (memorandum) designating the decision of the Administrative Appeals Office (AAO) in Matter of Z-A-, Inc. as an Adopted Decision 2016-02 (AAO Apr. 14, 2016).
The memorandum designates the decision of the AAO in Matter of Z-A-, Inc. as an Adopted Decision, thereby:
  • Establishing policy guidance that applies to and binds all USCIS employees.
  • Directing USCIS employees to follow the reasoning in this decision in similar cases.
Specifically, the adoption of the decision in Matter of Z-A-, Inc. results in policy guidance on the standard of review to be used in evaluating essential function manager petitions for L-1A status.
The AAO found that the definition of "managerial capacity" in Section 101(a)(44)(A)(ii) of the Immigration and Nationality Act (INA) and the implementing regulation allow for both "personnel managers" and "function managers," for example:
  • Personnel managers primarily supervise and control the work of other supervisory, professional, or managerial employees.
  • Function managers must primarily manage an essential function within an organization.
When examining the managerial capacity of a beneficiary, considerations should include:
  • The petitioner's description of the job duties. For example, a petitioner that claims that the beneficiary qualifies as a function manager must:
    • identify the essential function; and
    • describe in detail the services or job duties to be performed in managing that function.
    (8 C.F.R. § 214.2(l)(3)(ii).)
  • Whether the job duties and services to be performed by the beneficiary will be primarily managerial in nature. Relevant factors include:
    • the nature and scope of the petitioner's business;
    • the petitioner's organizational structure and staffing levels, and the beneficiary's position within the petitioner's organization;
    • the scope of the beneficiary's authority;
    • the work performed by other staff within the petitioner's organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and
    • any other factors that can contribute to understanding the beneficiary's actual duties and role in the business.
  • Whether the petitioner has demonstrated that the beneficiary will primarily manage, rather than perform, the essential function. An L-1A function manager may use his business expertise to perform some operational or administrative tasks. However, he must primarily manage an essential function. See for example:
    • Matter of Church Scientology Int'l, holding that an L-1A employee's duties "must be primarily at the managerial or executive level. 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" (19 I&N Dec. 593, 604 (Comm'r 1988));
    • Brazil Quality Stones, Inc. v. Chertoff, explaining that the petitioner bore the burden of demonstrating the beneficiary "was primarily engaged in overseeing essential functions of [the] business rather than performing them himself" (531 F.3d 1063, 1070-71 (9th Cir. 2008));
    • Q Data Consulting, Inc. v. INS, determining that the legacy INS reasonably concluded that the L-1A position was "not primarily managerial" because the record failed to establish that the foreign worker was "not merely performing the functions of the company" (293 F. Supp. 2d 25, 29 (D.D.C. 2003)); and
    • IKEA US, Inc. v. U.S. Dep't of Justice INS, sustaining the INS's determination that a beneficiary did not qualify as a function manager where the petitioner failed to document what proportion of the beneficiary's duties would be managerial functions (48 F. Supp. 2d 22, 24-25 (D.D.C. 1999) citing Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991)).
  • Relevant evidence in the record concerning the reasonable needs of the organization as a whole, including any related entities within the "qualifying organization," giving consideration to the organization's overall purpose and stage of development.
Employers and their counsel should review and be familiar with the standards articulated in the decision when preparing L-1A petitions for essential function managers and ensure that those petitions are fully documented. For more information, see Practice Note, The L-1 Intracompany Transferee Nonimmigrant Visa Classification.