L-1A: WHAT IS “MANAGERIAL CAPACITY?”
To qualify to work in the capacity of manager under the present immigration and citizenship department definition, the non-immigrant must be involved in management at a high level in an important company function as well as providing supervision for the work undertaken by other managerial, supervisory or professional employees.
An additional definition of ‘managerial capacity’ related to the position offered under the L-1A visa could be when the employee is mainly responsible for directing the organization; he or she supervises the work performed by other professional, supervisory or managerial employees, or a subdivision or department of the company; has the capacity to take on or offer recommendations for personnel actions, including firing, hiring and promotion; exercises authority at his or her discretion concerning the daily operations of the company.
The managerial position must be substantive and involve the beneficiary managing others to do any work and not do any day to day work him or herself and the manager’s staff has to carry out the necessary business functions.
When it comes to equating overseas managerial experience, it is normally acceptable for a specialist manager in their home country to effect a transfer to the USA to be employed in an executive or managerial position. Generally, as long as the beneficiary has a minimum of a year’s appropriate experience with the petitioning company in a senior qualifying position, they can be transferred.
Evidence is required to support managerial competence
It is vital to show through documentary evidence how the beneficiary’s training, education and experience would qualify them for the job being offered in the USA. This means compiling a job description of the U.S. position and then providing a written statement indicating how the beneficiary’s training, education, and experience makes them suitable for the position.
The difference between an executive and a managerial position
An executive has more independence in the company’s management than a manager and is responsible for establishing goals and policies of the organization. He or she can make discretionary decisions without calling for approval.
An executive and a manager do take part in tasks that overlap, but the executive is not only involved in the company’s direction and its targets but is accountable However, executives are generally more involved with the goal setting and direction of the company and are accountable to boards of directors and shareholders if they exist. In summary, the executive sets the goals and the managers implement them.
For an L1 beneficiary to qualify as a company specialist the petitioner is required to show that the beneficiary possesses advanced knowledge and understanding of the businesses procedures and products and that this superior knowledge is unavailable in the USAs labor market. The reason for introducing the L-1A visa category was to offer the opportunity for overseas companies coming to the United States who might find it hard to hire US personnel locally who may not have familiarity with the company’s practices and products. The foreign company’s employees who have specialized knowledge are permitted to become beneficiaries using the L-1A visa program.