by Victoria Chen, Esq., J.D.
What does the law say?
Immigration law states that: If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity (as previously defined) merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.
To sum up, the immigration law does not restrict the number of the employees the U.S. or the foreign company should employ to support the statement that the beneficiary is an EB1C multinational manager or executive.
What do the cases say?
Because of the law, most of the federal court cases and AAO decisions note that a company’s size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a visa to an EB1C multinational manager or executive. However, cases are of the opinion that it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a company’s small personnel size, the absence of employees who would perform the non-managerial or non-executive operations of the company. The petitioner must still establish that the beneficiary is to be employed in the United States in a primarily managerial or executive capacity. A small size of the company, along with limited or vague claims offered by petitioner to prove the manager or executive capacity, will be considered failed to satisfy this essential element of eligibility.
For example, in the precedent Family Inc. case, the court reasoned that the beneficiary was not engaged in managerial duties at dry cleaning operation he owned for purposes of the petition for change of status to multinational manager. In the case, the beneficiary (Mr. Oh) is a South Korean National and was president of company. His wife was the manager. The company had four other employees, and there was one corporate shareholder in Korea. The court found that the record submitted , including company’s small size, did not compel conclusion that alien was primarily engaged in managerial duties, as opposed to ordinary operational activities alongside company’s five other employees. The court confirmed the USCIS determination that Oh did not carry his burden of proving that he is acting in a managerial capacity within the meaning of the statute. In particular, the UCIS and AAO determined that in light of all the evidence submitted, including Family’s small size, Oh was likely to be involved in the performance of routine operational activities of the business rather than in managing the business.
The size of a company may be especially relevant when USCIS notes discrepancies in the record and fails to believe that the facts asserted are true. In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS may properly consider an organization’s small size as one factor in assessing whether its operations are substantial enough to support a manager.
What does our firm do to assist clients with a relatively small business to get EB1C approval?
We usually suggest the clients to have at least 6 employees (10 is a safer number) if these U.S. employees are not professionals (people who hold positions that at least require a bachelor’s degree). The immigration law suggests that the term managerial capacity is defined as an assignment within an organization in which the employee primarily- (i) manages the organization, or a department, subdivision, function, or component of the organization; (ii) 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; (iii) 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, functions at a senior level within the organizational hierarchy or with respect to the function managed; and (iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
So it is okay that the beneficiary sometimes performs jobs not in the managerial or executive capacity as long as his/her primary duty falls in the definition of managerial capacity.
In the petition, we will prove that there are other subordinaries to support the description of the job description. When examining the executive or managerial capacity of the beneficiary, the USCIS will look first to the petitioner’s description of the job duties. Instead of the putting too much duty description of the beneficiaries, we only put the job duties that are relevant to the law to meet the EB1C requirements. We will clearly describe the duties to be performed by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. And this description will be supported by the staff structure submitted along with the petition. We will also submit detailed duty descriptions of all employees, their IRS Form W-2, Wage and Tax Statement in the past year to support our statements in the petition.
To sum up, although the law indicates the size of the company alone cannot be used to deny an EB1C petition, the USCIS officers will take it into consideration when deciding whether or not the beneficiary is acting in managerial or executive capacity in the company. It is therefore important to submit all the supporting evidence in such a convincing way that the USCIS adjudicator won’t hold it against the petitioner that the company is not a big corporation. It requires a good attorney to plan and prepare comprehensive supporting materials for EB1C petitions. If you have any questions regarding EB1C petition, please don’t hesitate to contact us.
North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).
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