1. The Executive or Managerial Positions

The prospective immigrant must have been employed outside the U.S. for a related company for at least one year, in the three years immediately preceding the proposed transfer in a managerial or executive position, and that the employee must be coming to the US company to perform work in a managerial or executive capacity. 

An individual is not considered to be acting as a manager or executive merely on the basis of the number of employees that he/she supervises, directly or indirectly. The USCIS considers the reasonable needs of the organization, the overall purpose of the company and function, and the company's stage of development in determining whether a position qualifies. First-line supervisors generally are not considered managers or executives, without other evidence of their qualifications.

To be an executive, you must direct the management of the organization or a major part or function of it; you need to establish the goals and policies of the organization, and receive only general supervision from executives on a higher level, from the board of directors or stockholders of the organization. 

As a manager, you must manage the organization or other part of the organization, supervise and control the work of other professional employees, and have the authority to hire and fire. 

2. The Executive Capacity and Managerial Capacity

The Executive Capacity means an assignment within an organization in which the employee primarily:

• Directs the management of the organization or a major component or function of the organization.

• Establishes goals and policies of the organization, component, or function.

• Exercises wide latitude in discretionary decision-making; and 

• Receives only general supervision from higher level executives, board of directors, or stockholders of the organization.

The Managerial Capacity means an assignment with the organization in which the employee personally: 

• Manages the organization, or a department, subdivision, function, or component of the organization;

• 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;

• 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, function at a senior level respect to the function managed; and

• Exercises discretion over day-to-day operations of the activity or function for which the employee has authority. A first-line supervisors are not considered to be acting in the managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professionals.

3. Other Important Issues for Executive and Managerial Capacity

The EB1 Multinational Executives and Managers immigration category clearly creates opportunities for certain executives and managers of multinational companies to establish permanent residence in the United States. 

Even executives and managers of companies without existing subsidiaries in the U.S. may be able to take advantage of this category, by first establishing U.S. subsidiaries under L-1A status and then applying for first preference status once their subsidiary has been in business for the required one year period.

The definitions of managerial capacity and executive capacity include management of a function and the beneficiary need not directly manage other personnel. If staffing levels are used as a factor, the reasonable needs of the organization, component or function, in light of the overall purpose and stage of development thereof, must be taken into account. 

 

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