On November 8, 2017, U.S. Citizenship and Immigration Services (USCIS) adopted internal policy memorandum to clarify its standard of review of multinational functional manager immigrant petitions. As background, an individual may qualify for permanent residence (“green card”) status if he/she has been employed in a managerial or executive capacity for at least one year within the preceding three years prior to entry into the U.S. with the same employer, affiliate, parent or subsidiary of the U.S. company. USCIS generally defines a manager as one who manages the company or its department, subdivision, function or component; supervises and controls the work of other managerial, supervisory or professional workers or manages an essential function within the company, department, function or component of the U.S. company; holds the authority to hire and fire supervised employees or make other personnel decisions or functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercises direction over the daily operations of the organization or function or component of the U.S. company. The new policy memorandum impacts those petitions filed for multinational “functional” managers – or those who do not directly supervise or control the work of others; in other words, those individuals who manage a critical function within the company.
The new policy memorandum indicates that to “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,” i.e., 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.” USCIS has recently been issuing Requests for Evidence related to whether or not an individual will “primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.” With this new policy memorandum, employers should anticipate an increased likelihood of delays and/or requests for additional evidence issued by USCIS. As additional information becomes available, we will provide regular updates.