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Multinational Managers and I-140 Petitions

Priscilla Jones

FGI

INA Section 203(b)(1)(C) relates to evidence of what constitutes a multinational manager for purposes of petitioning for permanent residence status. According to 8 C.F.R. Section 204.5 Petitions for Employment-based immigrants, the USCIS regulations state:

A United States employer may file a petition on form I-140 for the classification of an alien under Section 203 (b)(1)(C) as a multinational executive or manager. In order to file a petition, the petitioning employer must have a certain corporate relationship to another company must be “doing business” and must be able to pay the wages offered to the beneficiary.

In this article, I am focusing specifically on ways in which a company can show an employee qualifies for permanent residence as a multinational manager. Multinational manager can be one of two types of managers:  personnel manager or function manager.

The regulatory language for managerial capacity advises that the employee must primarily:

1. Manages the organization or a department, subdivision, function or component of the organization;
2. 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 or the organization;
3. If another employee/ employees is/are directly supervised, has the authority to hire/fire or recommend those as well as other personnel actions; 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
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

In interpreting the above-noted elements, most personnel manager employees do not manage the organization or even a subdivision of a company – especially in large multi-national corporations with tens of thousands of employees. The key divider is whether the employee can be said to manage a “function” or “component.” I have classified the employee as a function manager if s/he is not managing people directly, but who is responsible for the overall success and revenue of an important program for the company.

If the employee manages a component of the company, I have argued that a “project” or “engagement” with the company client could be classified as a component of the company because the project or program generates revenue for the company.

Under the second Item, the employee supervises and controls the work of other supervisory, professional or managerial employees. This would clearly fall under the personnel manager. If the employee manages an essential function within the organization, s/he is a function manager.

With respect to item 3, a personnel manager would be a direct supervisor to other employees and is empowered to fire/hire or recommend those as well as other personnel actions. A function manager would not directly supervise another employee or team but would function at a senior level within the company hierarchy or the function managed.

The function manager would likely be responsible for the successful execution of a contractual agreement and may be the signatory on the attendant Master Services Agreement (MSA) or Statement of Work (SoW). S/he may also provide general technical or managerial guidance to a large team that will provide the services or perform the contractual obligations but would not carry out any “hands-on” work to design, test, or install the product. Function managers work at a higher level and generally interface with the client executives or decision-makers and make high-level strategic decisions on how the engagement will move forward.

In understanding item 4 above, the personnel manager who directs and controls a project generally oversees the day-to-day activities of their teams. S/he may directly supervise subordinate managers who in turn supervise the work of more junior level team members; may assign tasks; may review work performed; may carry out performance assessments for their reportees; and are the point of contact between the employer and the end-client.

Function managers may be the point of contact for the client, generally provide strategies on how to increase revenue, and add new projects, may negotiate the terms and conditions of contracts, may sign contracts (or MSA or SoW) on behalf of the employer company and may direct the delivery of contracted services. All managers generally are responsible for revenues in excess of $1-2.0 million USD annually.

Much of the success of EB-1(b)(1)(C) filings is the amount and relevancy of the evidence provided for either type of manager. I recommend the following types of evidence:

Personnel managers:

1. Organization charts for the qualifying period of work outside the US and the current US organization chart to depict the numbers and types of positions reporting to the I-140 beneficiary/employee.
2. Copies of the degree certificates for each subordinate in the organization charts.
3. Copies of semi-annual performance reviews between the manager and the employee (the performance review should show the employee/beneficiary as the appraiser or as the reviewer).
4. If degree certificates are not available, can use emails from the employee/manager/beneficiary directing the team member/subordinate to do some tasks.

Function manager:

1. Organization charts for the qualifying period of work outside the US and the current US organization chart to depict the various accounts/ engagements for which the employee is responsible. Each account should summarize the objective of the engagements with the client, provide the revenues generated or the P&L responsible for; for how many people is the employee/function manager responsible. (Generally, the teams for an account include Program Managers, Delivery Manager, senior level managers).
2. Emails from the employee/function manager directing cross-functional personnel to perform some tasks and giving deadlines.
3. Signed MSA or SoW.
4. Proposal creation and business development proofs.
5. Vendor contract signing authority.

Priscilla Jones is a Senior Attorney with FGI, USA PC, a comprehensive business immigration law firm in the greater Detroit area. The information provided in this article does not, and is not intended to, constitute legal advice. Instead, all information contained herein is for general purposes only. Comments from readers are most welcome and may be addressed to the author at priscilla@employmentimmigration.com or to FGI at info@employmentimmigration.com or by phone at (+1) 248.643.4900.