11.15.17
New USCIS Guidelines on Functional Managers
Whether someone can be defined as a "functional manager" in the world of U.S. immigration is relevant when a company is trying to transfer an individual from one entity abroad to a U.S. entity. It is also a relevant question when a company is seeking to sponsor a similar individual for a green card. On November 8, 2017, U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum in response to the decision in Matter of G- Inc. of the Administrative Appeals Office (AAO) which addresses this very question.
In Matter of G- Inc., the AAO defines a "functional manager" and provides a set of criteria which must be met in order to demonstrate that an individual is a functional manager. In summary, functional managers are individuals who manage or direct an important function for a business or organization. This is different from what the AAO refers to as a "personnel manager," which is a person responsible for managing other supervisory, professional, or managerial people rather than a particular function.
To fulfill the definition of a functional manager, the following criteria must be met:
(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.
So when thinking of whether an individual is a functional manager one must first determine whether one's function is a defined and critical piece to the organization and then whether she meets the definition based on her job duties and level in the organization. Without both, the criteria cannot be met. Practically this does not greatly change previous practices and requirements. However, it does provide a clearer definition on how to meet the definition of a functional manager and what type of evidence to provide.
The above information has been provided for educational purposes only by Clark Lau LLC (www.clarklau.com). Please feel free to contact a knowledgeable immigration attorney as to how the above may apply to one's particular circumstances.
Whether someone can be defined as a "functional manager" in the world of U.S. immigration is relevant when a company is trying to transfer an individual from one entity abroad to a U.S. entity. It is also a relevant question when a company is seeking to sponsor a similar individual for a green card. On November 8, 2017, U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum in response to the decision in Matter of G- Inc. of the Administrative Appeals Office (AAO) which addresses this very question.
In Matter of G- Inc., the AAO defines a "functional manager" and provides a set of criteria which must be met in order to demonstrate that an individual is a functional manager. In summary, functional managers are individuals who manage or direct an important function for a business or organization. This is different from what the AAO refers to as a "personnel manager," which is a person responsible for managing other supervisory, professional, or managerial people rather than a particular function.
To fulfill the definition of a functional manager, the following criteria must be met:
(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.
So when thinking of whether an individual is a functional manager one must first determine whether one's function is a defined and critical piece to the organization and then whether she meets the definition based on her job duties and level in the organization. Without both, the criteria cannot be met. Practically this does not greatly change previous practices and requirements. However, it does provide a clearer definition on how to meet the definition of a functional manager and what type of evidence to provide.
The above information has been provided for educational purposes only by Clark Lau LLC (www.clarklau.com). Please feel free to contact a knowledgeable immigration attorney as to how the above may apply to one's particular circumstances.