Managerial Capacity as a “Functional Manager”.note¶
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Managerial Capacity as a “Functional Manager”
Managerial Capacity
USCIS itself says, “Contrary to the common understanding of the word ‘manager’ as any person who
supervises others, the statute has a much more limited definition of the term ‘manager.’”15
The term “managerial capacity” means an assignment within an organization in which the employee
“primarily”:
Manages the organization, or a department, subdivision, function, or component of the
organization;
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;
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; if
no other employee is directly supervised, functions at a senior level within the organizational
hierarchy or with respect to the function managed; and
Exercises discretion over the day-to-day operations of the activity or function for which the
employee has authority.
As you can see from the above discussion, if the foreign national seeks to prove “managerial
capacity” not on the basis of the staff supervised but instead on the basis of being a “functional
manager,” the foreign national’s responsibilities must be “primarily” to:
The function must be essential. For example, “[t] he human resources function of a large
multinational corporation, with more than one thousand employees, is plainly an essential
function.”25 The following factors are relevant to whether the function is essential.
o The nature and level of sophistication of the business.
o The broad scope of the foreign national’s authority, including approval of work by others, and how
the foreign national is accountable for results.
o How large a budget the foreign national controls; and/or the value of services for which the foreign
national is responsible.
The foreign national must function at a senior level within the organizational hierarchy or with respect
to the function managed. The following factors are relevant:
o To the extent that the foreign national deals with parties outside of the employer’s hierarchy, it is
helpful that parties be at a senior level (e.g., representing the company in government and industry
groups; meeting with other company presidents or with high-level government officials on behalf of
the company).26
o It is also helpful if the foreign national sets policies or develops strategies which other employees,
including professionals and managers, will implement. Explain what those policies or strategies are,
which employees will carry out those policies or strategies, and how the foreign national will go about
ensuring that such employees will implement the policies or strategies properly (e.g., reviews, audits).
o Show what duties the foreign national doesn’t do (because they are done by subordinates, thereby
leaving the foreign national free to manage).
o The foreign national’s salary is indirect evidence of his or her stature within the employer’s
hierarchy.