Articles - Compliance and Legal

What do many of the top executives and managers of Toyota, Honda, Nestle, GE, and Hitachi have in common? Most likely they started working in the United States using L-1A visas.

You may know that a U.S. employer (if they are a parent, subsidiary, affiliate, or branch of foreign company) may transfer an executive or manager from one of its foreign offices to one of its offices in the United States through L-1A nonimmigrant classification.

You may also know that a foreign company that does not yet have an affiliated U.S. office may use this classification in order to send an executive or manager to the United States with the purpose of establishing a “start-up” company.

But what you may not know is that a foreign worker cannot be both an executive and a manager at the same time. It’s either one or the other. If you think your petition documentation for a manager should be the same as for an executive, better think again!

The term executive capacity means that the person primarily performs the following duties within the organization:

1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision-making ; and
4. Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

A manager primarily performs the following duties within the organization:

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 of the organization;
3. Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), if another employee or other employees are directly supervised; or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; &
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

In short, an executive is one who makes broad policy without much oversight while a manger supervises and controls the work of professional employees and manages the organization, or a department, subdivision, function, or component of the organization. Also, a person can also be a “functional” manager who manages an essential function of the organization at a high level without direct supervision of others.

It is worth noting that a supervisor is not necessarily a manager merely by virtue of his or her supervisory duties unless the employees supervised are degree-holding professionals or managers. Also, there is an exception if the manager or executive is coming to open a new office. In this situation, the person could be both an executive and a manager, but only for the first year. After that, it is very important to draw clear distinctions of roles, responsibilities and duties.

When preparing an L-1A petition, it is very important to clearly define the job position and to include all of the pertinent supporting documents.

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BIOGRAPHY

Carl Shusterman is the managing attorney of Law Offices of Carl Shusterman based in Los Angeles, CA. He has specialized in immigration law for over 30 years and his six-attorney law firm represents clients in all 50 states. Mr. Shusterman is a 1973 graduate of the UCLA School of Law. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered private practice. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals in a number of different circuits and the Supreme Court of the United States.

Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's National Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He has served as a member of the Immigration and Nationality Law Advisory Commission for the State Bar.

He has been named as one of Best Attorneys in America and as a SuperLawyer for many years. He is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee on Immigration in Washington, D.C. His website, www.shusterman.com, receives over 1,000,000 hits each week, and his free, e-mail newsletter has over 60,000 subscribers in more than 150 countries.

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