The USCIS Administrative Appeals Office (AAO) recently adopted a binding decision on how to determine “managerial capacity” for L-1A classification. Specifically, the decision holds that when staffing levels are considered in deciding whether an individual will act as a manager, the USCIS must consider the sponsoring employer’s evidence of personnel at legally related entities abroad who will support the manager in daily non-managerial tasks.
The Petitioner is a US subsidiary of a Japanese company. The foreign national worker was deployed as Vice President and Chief Operating Officer (“COO”) of Petitioner’s new US operations in L-1A classification. When the company sought to extend its new office L-1A on the COO’s behalf, the company had two employees in the US. Petitioner also showed that there were eight staff members in Japan that exclusively supported US operations.
USCIS initially denied the petition, concluding that the Petitioner did not have an “organizational structure” sufficient to support the L-1A worker in a qualifying managerial or executive position. It did not acknowledge the eight employees in Japan that were supporting the L-1A manager in day to day operational tasks.
On appeal, the AAO withdrew USCIS’s decision, and approved the petition for L-1A classification. The AAO held that USCIS should have considered the evidence of foreign staff and the need for their services given that the US business was still in the early stages of its development. It reasoned that while having only a few employees on US payroll is relevant in determining whether a beneficiary qualifies as an L-1A manager, it does not necessarily mean that the L-1A worker is primarily performing daily operational duties.
This decision is a particularly welcome development for international companies that recently expand to the U.S. and rely on personnel abroad because they are unable to hire sufficient U.S. personnel within the first few years of operations.
See Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016)