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A Recent Trend in Employment-Based Petitions for Executive Employee Intracompany Transfers

United States companies with a parent, subsidiary, or affiliate company, or a branch office, in another country may petition to transfer an Executive or Manager from the company abroad to the company in the United States. To qualify, the employee’s position must meet the definition of “executive capacity” or “managerial capacity” included in the Immigration and Nationality Act.

We have noticed a troubling recent trend related to petitions for Executive intracompany transfers. The United States Citizenship and Immigration Services (USCIS), the agency tasked with adjudicating these petitions, is requiring companies to submit evidence that is not required by law. This is especially concerning for small companies with fewer than ten employees.

“Executive capacity” is defined in the INA to mean:

an assignment within an organization in which the employee primarily—

(i)         directs the management of the organization or a major component or function of the organization;

(ii)        establishes the goals and policies of the organization, component, or function;

(iii)       exercises wide latitude in discretionary decision-making; and

(iv)       receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

8 U.S.C. § 1101(a)(44)(B).

The focus of these “executive capacity” criteria is the authority that the employee has to set the strategic direction for the company. An executive establishes the goals of the company; establishes the policies of the company; uses his discretion to make strategic decisions for the company; directs the management of the company to accomplish or meet these goals, policies, and decisions; and, in doing all of that, receives no more than general supervision or direction from anyone with higher authority in the company. An executive oversees the big picture, company-wide decision-making and goal-setting for the company.

Although the executive employee will be required to “direct[] the management” of the company, the statutory criteria do not require any specific discussion or evidence related to any subordinate employees or the duties that any subordinate employees perform.

In contrast, the definition of “managerial capacity” does require specific discussion and evidence related to subordinate employees. “Managerial capacity” is defined in the INA to mean:

an assignment within an organization in which the employee primarily—

(i)         manages the organization, or a department, subdivision, function, or component of the organization;

(ii)        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;

(iii)       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

(iv)       exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

8 U.S.C. § 1101(a)(44)(A).

The focus of these “managerial capacity” criteria is the employee managing, supervising, and controlling the work of other employees so that those other employees complete necessary tasks; or managing, supervising and controlling an essential function of the company to ensure that those necessary tasks are completed. The “managerial capacity” criteria require more specific facts about subordinate employees and the duties that they will perform.

Despite the lack of any legal requirement to provide any specific evidence or facts related to subordinate employees of an Executive, USCIS has begun issuing Requests for Evidence that request extensive details about the duties of subordinate employees, the managerial nature of those duties, and how those duties “correspond to their placement in the organization’s structural hierarchy.”

This extra-legal requirement is especially troubling for small companies with few employees, or companies with atypical organizational structures.

If your organization would like to petition for an intracompany transferee—or to employ a foreign national in any other classification—it is important to retain the services of a qualified and experienced attorney, such as you can find at David Swaim & Associates, P.C.

Alexander Farquhar
Senior Associate Attorney – Dallas, Texas
David Swaim and Associates, P.C.