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Amicus Brief on Managerial or Executive Capacity signed 3-18-2015

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Amicus Brief on Managerial or Executive Capacity signed 3-18-2015 A common sense approach. No hybrids alowed.

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Amicus Brief on Managerial or Executive Capacity signed 3-18-2015

  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 1 Submitted by: Joseph P. Whalen 238 Ontario Street, No. 6 Buffalo, NY 14207 (716) 604-4322 (cell) (716) 768-6506 (land-line) joseph.whalen774@gmail.com ADMINISTRATIVE APPEALS OFFICE (AAO) U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) DEPARTMENT OF HOMELAND SECURITY (DHS) 20 Massachusetts Ave., NW Washington, D.C. 20529-2090 AMICUS BRIEF ARGUMENT AGAINST ANY HYBRID FORM OF “EXCUTIVE---MANAGERIAL CAPACITY” FOR L1A & E13 VISAS I. Introduction: There are two visa categories that rely on these same two definitions: managerial capacity and executive capacity. There is a nonimmigrant visa available to intracompany transferees who will come to the U.S. temporarily to continue to render the same services for the “same” or a closely associated “employer” as defined in the law. One of the varieties of the nonimmigrant transferees (L-1A) is one who already has been, while abroad, and will again, in the U.S., work in a capacity that is executive or managerial in nature. The second visa category is for an immigrant version of a transferee as a multinational executive or manager. This permanent transferee is classed as an E13, often called EB-1C for its statutory location as an employment-based first- preference of the third sub-category found at INA § 203(b)(1)(C) [8 U.S.C. § 1153(b)(1)(C)]. The nonimmigrant counterpart mentioned above finds its statutory description at 8 U.S.C. § 1101(a)(15)(L) but is further delineated by the regulations
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 2 at 8 C.F.R. § 214.2(l). Each of these managers or executives and their jobs must meet the appropriate statutory definitions in order to be granted a U.S. worker visa. II. Statutory Definitions of The Subject Visa Classifications: As a starting point, it is necessary to include the actual statutory language that defines each of the two exceedingly similar visa classifications. It must be emphasized that while the nonimmigrant and immigrant versions of transplanted highly-placed company executives and managers are similar, they are not a 100% exact match. A. Nonimmigrant Intracompany Transferees (L1-A) 8 U.S.C. § 1101 [INA §101] Definitions (a) As used in this chapter- (15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens- (L) subject to section 1184(c)(2) [214(c)(2)] of this title [INA], an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge, and the alien spouse and minor children of any such alien if accompanying him or following to join him; 8 U.S.C. § 1184 [INA § 214] Admission of Nonimmigrants (c) Petition of importing employer (1) The question of importing any alien as a nonimmigrant under subparagraph (H), (L), (O), or (P)(i) of section 1101 (a) (15) of this title (excluding nonimmigrants under section 1101(a)(15)(H)(i)(b1) of this title) in any specific case or specific cases shall be determined by the Attorney General1 , after consultation with appropriate agencies of the Government, upon petition of the importing employer. Such petition, shall be made and approved before the visa is granted. The petition shall be in such form and contain such information as the Attorney General shall prescribe. The approval of such a petition shall not, of itself, be construed as establishing that the 1 The functions in this section ascribed to the Attorney General have been transferred to the Secretary of Homeland Security and delegated to USCIS.
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 3 alien is a nonimmigrant. For purposes of this subsection with respect to nonimmigrants described in section 1101(a)(15)(H)(ii)(a) of this title, the term "appropriate agencies of Government" means the Department of Labor and includes the Department of Agriculture. The provisions of section 1188 of this title shall apply to the question of importing any alien as a nonimmigrant under section 1101(a)(15)(H)(ii)(a) of this title. (2)(A) The Attorney General shall provide for a procedure under which an importing employer which meets requirements established by the Attorney General may file a blanket petition to import aliens as nonimmigrants described in section 1101(a)(15)(L) of this title instead of filing individual petitions under paragraph (1) to import such aliens. Such procedure shall permit the expedited processing of visas for admission of aliens covered under such a petition. (B) For purposes of section 1101(a)(15)(L) of this title, an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. (C) The Attorney General shall provide a process for reviewing and acting upon petitions under this subsection with respect to nonimmigrants described in section 1101(a)(15)(L) of this title within 30 days after the date a completed petition has been filed. (D) The period of authorized admission for- (i) a nonimmigrant admitted to render services in a managerial or executive capacity under section 1101(a)(15)(L) of this title shall not exceed 7 years, or (ii) a nonimmigrant admitted to render services in a capacity that involves specialized knowledge under section 1101(a)(15)(L) of this title shall not exceed 5 years. (E) In the case of an alien spouse admitted under section 1101(a)(15)(L) of this title, who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an "employment authorized" endorsement or other appropriate work permit. (F) An alien who will serve in a capacity involving specialized knowledge with respect to an employer for purposes of section 1101(a)(15)(L) of this title and will be stationed primarily at the worksite of an employer other than the petitioning employer or its affiliate, subsidiary, or parent shall not be eligible for classification under section 1101(a)(15)(L) of this title if- (i) the alien will be controlled and supervised principally by such unaffiliated employer; or (ii) the placement of the alien at the worksite of the unaffiliated employer is essentially an arrangement to provide labor for hire for the unaffiliated employer, rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary. B. Multinational Executive or Manager (E13) [EB-1C] 8 U.S.C. § 1153 [INA § 203] (b) Preference allocation for employment-based immigrants Aliens subject to the worldwide level specified in section 1151(d) of this title for employment-based immigrants in a fiscal year shall be allotted visas as follows: (1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens described in any of the following subparagraphs (A) through (C):
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 4 (C) Certain Multinational Executives and Managers. -- An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. III. Statutory Definitions Used to Depict Job Duties: 8 U.S.C. § 1101 [INA §101] Definitions (a) As used in this chapter- (44)(A) The term "managerial capacity" means 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. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional. (B) The term "executive capacity" means an assignment within an organization in which the employee primarily- (i) directs the management of the organization or a major component or function of the organization; (ii) establishes the goals and policies of the organization, component, or function; (iii) exercises wide latitude in discretionary decision-making; and (iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. (C) 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.
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 5 IV. Argument and Analysis: As shown above, each type of job, i.e. manager or executive, is defined slightly differently, and therein lies much confusion by petitioners, beneficiaries, and their counsel. What makes it even worse is that when you deeply study the definitions, it becomes evident that they can each be subdivided quite similarly. Lastly, the final paragraph discusses “staffing levels” and the “stage of development” and “needs” of the organization. Many misinterpret that part as meaning more than it does. Paragraph (C) is actually the part that is most responsible for the regulations pertaining to the “new office” scenario for the nonimmigrant intracompany transferee and should end there, but as will be shown, it does not end there. Instead it leads to even more confusion. The confusion mentioned above is where the unacceptable “hybrid” comes from, in my opinion. I have encountered cases where petitioners and their counsel are overwhelmed with possibilities and a mountain of paperwork that might serve as documentary evidence to support a petition. When a real and true highly-placed “manger” or “executive” in a multinational company takes a step back and looks at all of the wide range of things that they do, they often find that they have too many options and do not know how to approach case preparation and presentation. In short, they do not know where to begin. The small number of people that Congress envisioned when they wrote the original “intracompany transferee” classification, some forty-five (45) years ago, were true “multinational bigshots”. Those folks ran the entire organization or a major part of it. They might have overseen major functions, or they may have wielded wide ranging powers over the company’s workforce. The immigration laws of the United States at that time were too restrictive and hampered the quick and easy movement of personnel into the U.S. because there was ONLY the option of applying for an immigrant visa. The process was painfully slow because the computer as we know it today simply did not exist. Confidential information had to hand carried and/or encoded; background checks required an Officer of the U.S. government to interview neighbors, co-workers, and possible local law enforcement counter-parts, in-country. The answer was the intracompany transferee, L visa.
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 6 The word “hybrid” for the purpose of this brief is simply: “a mixture of two or more distinct things, ideas, or concepts; resulting in something distinct from either (or any) of the original contributors”. As to a “thing”, I offer this example; if a donkey and a horse mate they produce a “mule”, unfortunately for the mule, it is a genetic dead-end as it cannot reproduce. The hybrid of interest in this brief concerns the mixing of the various paragraphs, sub-paragraphs, and their clauses. In addition to the statutory bits and pieces, there are also regulatory bits and pieces that could be thrown into the mix. The main problem with mixing these various bits and pieces is that the resulting hybrid is an infertile dead-end that fails to meets either of the either of the necessary statutory definitions. The hybrid manager/executive can produce certain pieces of paperwork more easily than other pieces. In the matter of case preparation, expediency can be fatal. I believe that it is best to begin this challenge at the very beginning. I propose a series of questions to aid one in focusing their energy most productively at the early stages. Here are those questions.  Do you manage the entire organization globally?  Do you manage (or will you be managing) one of the two entities with a qualifying relationship underlying this petition?  Do you manage a major component of the organization?  If managing a “major component”, does that primarily entail overseeing a “function” or “personnel”?  Do you directly manage something OR do you direct the management?  If you directly manage something, stick to the managerial capacity definition.  If you direct the management of something, then stick to the executive capacity definition. The biggest problem that I can find with the “hybrid” definition approach is that it is a sign of a confused petitioner and/or incompetent immigration practitioner. The “hybrid” approach amounts to merely a fancy label for the “kitchen sink” approach. That approach is when the supporting documentation accompanying an application, or as in this case, a petition, includes “everything but the kitchen sink”. This type of sloppy case presentation is a dead giveaway of an incompetent practitioner who is not skilled at case preparation. It is a sign of desperation when everything is dumped in the lap of the adjudicator in the hopes that they will figure it out for you. That “all inclusive” pile of paper only slows things down and most importantly, it simply does not work.
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Contact: joseph.whalen774@gmail.com or call (716)768-6506 or (716)604-4233 PAGE 7 V. Conclusion. The biggest danger of trying to invent some type of combined executive-manger hybrid definition is failing to actually demonstrate meeting either one. Some of the elements in the manager definition and in the executive definition are deceptively similar while certain elements appear different when not. For example, many folks jump on the manager’s authority to “hire and fire” while not realizing that in their guise as an executive they can “exercise wide latitude in discretionary decision-making”. The same documentation can be used to meet either one when it relates to interviewing candidates for employment, disciplining arrant employees, and/or discharging an employee. When one “picks and chooses” from between the two distinct lists of elements; they can end up “double-counting” one or more tasks that are merely described two ways. This approach usually results in failing to actually meet all four elements from either of the two statutory definitions; or making it so confusing that the adjudicator cannot tell what you are trying to demonstrate with the evidence presented. There is no requirement to meet both definitions, do not try. The petitioner must demonstrate that the job duties, both abroad and in the U.S., meet one of the definitions, pick one. There need be only one. Stay calm and focus on the case preparation and then on the case presentation. These steps require discipline and a dispassionate, methodical, and somewhat clinical approach. Dated this 18th day of March, 2015. X /s/ Joseph P. Whalen Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou, email=joseph.whalen774@gmail.com, c=US Date: 2015.03.18 02:58:36 -04'00'

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