EB-1C Managerial or Executive requirement
Applicants must have been (in the 1+ year requirement) and will be (in their future role with the U.S. Petitioner) in a managerial or executive role.
Managerial Capacity means a role where the applicant personally:
- Manages the organization, department, subdivision, function, or component
- Supervises and controls other supervisory, professional, or managerial employees OR manages an essential function within the organization
- Has the authority to fire, hire, or recommend personnel actions
- Exercises discretion over day-to-day operations of the activity or function
Executive capacity means a role where the applicant personally:
- Directs management of organization, major component, or function
- Establishes goals and policies
- Exercises wide latitude in decision making
- Receives only general supervision or direction from higher level executives, board of directors, or stockholders
Even if the foreign national does not have subordinate employees to supervise, he or she may still qualify as a manager if he or she manages an “essential function” of the business.
A “function manager” is an applicant who primarily:
- Manages the organization, or a department, subdivision, function, or component of the organization
- Manages an essential function within the organization, or a department or subdivision of the organization
- Functions at a senior level within the organizational hierarchy or with respect to the function managed
- Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.
What counts as Managerial or Executive?
Functional Manager: An employer who manages a function that is important to achieve the company’s goals. Because a function manager may not have the authority to execute personnel actions, the manager must operate at a senior level within the company to qualify.
Ex: Vice President of Marketing: The employer is to assume responsibility for developing the marketing goals and policies for the U.S. territory. The employer has full discretion over all factors involved in establishing the new marketing standards and is responsible for ensuring its success. He/she is personally responsible for outlining the U.S. marketing goals and has the authority to execute the necessary steps independently.
Ex: Manufacturing Director: An employer that has only one employee directly reporting to him, but that employee directed the work of three outside agencies. USCIS found that a function manager does not have to oversee employees, but rather should manage an “essential function” or operation without that organization.
Positions in managerial or executive capacity may include:
- Chief Executive Officer, Chief Financial Officer, Chief Operating Officer
- Executive Director of a specific department such as Finance or Marketing
What does NOT count as Managerial or Executive?
Produce a produce or to provide services: An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.
First-line supervisor: A first-line-supervisor is not considered to be a manager unless the employees supervised are professionals.
Other activities not in managerial or executive capacity may include: Supervision of low level employees, Sales work, Producing products, Providing services, operating machinery, Supervising others producing products or providing services, Other involvement of company activities not related to management
Ex: Chef of a Food Service Company: USCIS held that a chef of a food service company could not qualify as a “functional manager” for EB-1C Multinational Manager or Executive petition. The EB-1C petitioner assumed that managing food service is an “essential function” for the alien beneficiary, but the petitioner failed to establish that managing food service in one store qualifies as “managing an essential function, department, subdivision, or component of the organization as a whole.”
Ex: Team Manager of a consulting company: With a former position as Senior Software Consultant being only 60% managerial, and the prospective position as team Manager over 10 employees was not primarily managerial. However, the USCIS is likely to grant an L-1A visa petition for the same position.
Ex: The Staff-Managing Manager: The person attempting to qualify under this definition must manage at least two tiers of staff or professionals. Under this definition, a first-line supervisor is not a manager because of the supervisory duties, unless the supervised employees are professionals.