USCIS Adopts Decision of Matter of G- Defining Function Manager for EB-1C Multinational Executive/Manager Petition

November 16th, 2017

On November 8, 2017, USCIS issued a policy memo on multinational function managers designating Matter of G-, Inc. as an adopted decision (Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017) . Matter of G- states that to satisfy the requirement that the beneficiary will be employed in a managerial role as a function manager (as opposed to a manager of people), the following must be demonstrated:

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.

In order to be classified as an EB-1C multinational executive/manager for immigrant visa purposes, the following requirements must be met:

1. The foreign national was employed in a full-time executive or managerial position for one year in the three years preceding his or her transfer into the U.S;
2. The foreign national was employed in such capacity by the overseas affiliate, parent, subsidiary or branch of the US petitioner employer;
3. The foreign national will work in a managerial or executive capacity for the affiliated entity in the US; and
4. The US petitioner has been operating for at least one year as of the date of filing the petition.

AAO Finds I-140 Petitioner Established Executive Nature of the Position

July 18th, 2016

The AAO found that the Nebraska Service Center (NSC) erred in the denial of an EB-1 Form I-140 Multinational Executive petition, finding that the beneficiary’s duties were primarily executive in nature.  Matter of R-V, ID#16025 (AAO, May 10, 2016).  The AAO set forth the regulatory (8 CFR §204.5(j)(5) and statutory (8 USC §1101(a)(44)(B)) definitions of executive capacity, which places primary importance on the beneficiary’s “elevated position within a complex organization hierarchy.”  The AAO noted that the statute requires that the beneficiary must have the ability to “direct the management” and “establish the goals and policies” of that organization.  It also stated that implicit in the definition is the requirement that there is a subordinate level of managerial employees for the beneficiary to direct.

In analyzing the evidence, the AAO indicated that the petition had submitted copious materials with details of the executive nature of the beneficiary’s position, including an organizational chart noting the beneficiary’s job duties and the percentage of time he would devote to each and the subordinate employees he would direct and their duties; a flow chart of the foreign entity’s supervisory and professional staff; and copies of work contracts between the petitioner and its clients.  The AAO held that there was sufficient evidence that “the beneficiary oversees the Petitioner’s sales and marketing departments, its market analysis and strategic planning, delivery of services, and its finances and accounting functions.”  It noted that the underlying duties associated with key departments are carried out by both US-based staff and foreign employees.  The AAO concluded that the beneficiary’s job duties are “primarily executive in nature, while the day-to-day operational tasks associated with the Petitioner’s daily functions are performed by other staff within the Petitioner’s multinational organization.  Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

There are two key points supported by this decision.  The first is that the executive duties must only be primarily executive in nature, not wholly executive.  Such an interpretation allows for the multinational executive beneficiary of an EB-1C I-140 petition to conduct some of the actual job duties, not merely direct or oversee them.  Also, this decision acknowledges that the supervision and direction of foreign staff may be taken into account in determining if the organization is sufficiently complex and if the beneficiary will be relieved of conducting most of the actual job duties.