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USCIS Establishes New Five-Prong Test for “Function Managers”

Authors: Fauzia N. Amlani (Atlanta), Sara E. Herbek (Atlanta)

Published Date: November 28, 2017

Multinational companies that wish to transfer managerial employees to the United States now have clarification on the criteria required to do so. A new five-prong test adopted by U.S. Citizenship and Immigration Services (USCIS) speaks directly to the issue of which multinational employees can be considered “function managers.” The basis for this clarification was first set forth in the Administrative Appeals Office decision Matter of G- Inc., a case in which. USCIS adopted the Matter of G- Inc. decision in a policy memorandum, making it binding on all USCIS adjudication officers.  

According to the new policy, to be classified as a multinational executive or manager, a visa beneficiary must have been employed abroad in either a managerial or executive capacity for at least one year. Additionally, the beneficiary must be seeking to work in a managerial or executive capacity in the United States for the same employer (or for its parent, affiliate, or subsidiary). The definition of “managerial capacity” includes both personnel managers and function managers. Personnel managers primarily supervise and control the work of other professional employees. Function managers primarily manage an “essential function” within an organization.

Pursuant to Matter of G- Inc., in order to establish that a visa beneficiary will be employed in managerial capacity as a “function manager,” the employer must first establish that the function is a clearly defined activity and is essential to the organization. Secondly, the employer must establish that its employee’s position meets the criteria for “managerial capacity” as defined in the Immigration and Nationality Act of 1965. Accordingly, in order to establish that an employee is a function manager, employers must satisfy the following five-prong test and 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.”

Employers seeking to transfer managerial employees to the United States can use this policy memorandum as a guide to determine whether an employee can be transferred to the United States as a multinational function manager.

Sara E. Herbek, a shareholder in the Atlanta office of Ogletree Deakins, represented the prevailing party in the Matter of G- Inc. case.

Fauzia N. Amlani  (Atlanta)

Fauzia N. Amlani
Fauzia N. Amlani is an associate attorney in the Atlanta office of Ogletree Deakins. She focuses her practice on employment-based immigration, assisting corporate clients in the process of hiring and employing foreign nationals. Ms. Amlani has experience with filing non-immigrant visas, immigrant petitions, labor certifications, and permanent residency applications before various government agencies including the U.S. Citizenship and Immigration Services, U.S. Department of State, and the U.S....

Sara E. Herbek  (Atlanta)

Sara E. Herbek
*Currently licensed in Illinois only. Sara joined our firm's Raleigh office in November 2012. She moved to Atlanta in October 2016 to oversee the firm’s immigration group in that office. In addition, she currently represents multinational corporations in manufacturing, scientific research and information technology fields. She provides strategic immigration advice regarding the movement of professionals throughout the world, including temporary and permanent work visas. Her representation...