USCIS Issues Policy Guidance on Functional Managers: 5 Criteria Employers Should Know

Practice Areas

By: Elizabeth Goings

On November 8, 2017, USCIS adopted an Administrative Appeals Office (AAO) decision outlining five criteria an employer must establish to prove that a position is functional in nature.   

Why is this important for Employers?

Some global employers would like to transfer talented managers from their organization abroad to the U.S. to temporarily manage a department or division.  The L-1A nonimmigrant visa category is one possible avenue for this.  In time, these employees may become very valuable to the U.S. entity.  Accordingly, an employer may seek to permanently hire these multinational managers under a first-preference visa (EB-1) category as defined under immigration law.

One type of employee that would qualify for this would be a “functional manager.”  In contrast to taking a more supervisory role over professional employees, a functional manager is defined as one who primarily manages an “essential function” within the organization.

What Employers Need to Know

  1. For L-1A or EB-1 purposes, a functional manager primarily manages an “essential function” within the organization.
  2. USCIS has issues guidance on how it defines Functional Managers
  3. Understand the 5 criteria that USCIS has adopted as part of its adjudicative process
There have been numerous AAO opinions attempting to clarify what the latter role is. For instance, at least one non-precedent AAO opinion reviewed whether the activity of managing a complex project constituted an essential function of the business.  Another non-precedent AAO opinion, which has since been adopted by USCIS, concluded that a functional manager can be one who manages the “function” of setting up and directing a US operation.

What Constitutes an “Essential Function” of the Organization?

In its most recent Policy Memorandum, USCIS is providing further clarity on the criteria it will use to adjudicate petitions for a functional manager.

The criteria can be found in the USCIS adopted Administrative Appeals Office (AAO) decision of In Matter of G-Inc. In that case, the employer was a multinational technology-based product development corporation who sought to hire an employee permanently as an EB-1 functional manager in the position of “Director, Financial Planning and Analysis (FP&A).”  USCIS denied its I-140 petition and eventually the employer appealed.

The AAO held in favor of the employer.  In determining whether the activity was an “essential function,” it found that the employer’s financial analysis and planning activity was core to the employer’s business growth, financial health, and executive decision making.  This activity was therefore an essential function to its business.

As part of this analysis, the AAO outlined five criteria to consider when adjudicating a petition that involves a functional manager:

  • the function is a clearly defined activity;
  • the function is “essential”, i.e. core to the organization;
  • the beneficiary will primarily manage, as opposed to perform, the function;
  • the beneficiary will act at a senior level within the organization hierarchy or with respect to the function managed; and
  • the beneficiary will exercise discretion over the function’s day-to-day operations.

Because the memo provides guidance to USCIS adjudicators, employers and human resource managers should also read and discuss with immigration practitioners to understand its impact.  To read the full Policy Memorandum, please visit USCIS website here.

Contact Us for Questions or Concerns

Contact us for any questions regarding how this USCIS Policy Memorandum may affect your filing or to stay up-to-date on other immigration alerts.

You may sign up for our Chugh, LLP newsletter pertaining to employment based immigration matters at or contact us at

The information provided herein is not meant as a substitute for legal counseling but is general information. Use of this document or any other material provided by Chugh, LLP does not create an attorney-client relationship. All information should be independently verified before relied or acted upon.

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