Transferring a Manager Between Related Companies

Moving a manager from an overseas operation into a United States entity looks like an internal staffing decision. As an immigration matter it is three separate findings, each proved on its own evidence: that the two entities are related in a defined way, that the employee has the required history abroad, and that the role on both sides of the move is managerial or executive.

The qualifying organization

The regulation defines a qualifying organization as an entity that meets exactly one of the relationships specified in the definitions of parent, branch, affiliate or subsidiary; that is or will be doing business as an employer in the United States and in at least one other country, directly or through a related entity, for the duration of the employee's stay; and that otherwise meets the statutory requirements.

Two details in that definition do a great deal of work. The relationship must be exactly one of the four, which forces a precise characterization rather than a general assertion of association. And the business activity must continue for the duration of the stay, which makes it a continuing condition rather than a fact established once at filing.

The requirement also has a temporal dimension that petitions sometimes ignore. An organization that will be doing business, rather than one that already is, can satisfy the definition in the new office setting, but the future tense carries its own evidentiary burden. What the definition does not accommodate is an intention unsupported by premises, investment or structure.

What doing business requires

Doing business is defined as the regular, systematic and continuous provision of goods or services by a qualifying organization, and expressly excludes the mere presence of an agent or an office. Engaging in international trade is not required. The definition therefore excludes the holding company with no operations and the representative office that exists to receive correspondence.

Because the requirement applies in both countries, a transfer that effectively closes the overseas operation defeats the premise of the classification. An organization that intends to move its entire activity to the United States is not transferring an employee within a multinational structure; it is relocating, and the classification is not designed for that.

The year abroad

The employee must have at least one continuous year of full-time employment abroad with a qualifying organization within the three years preceding the filing. The year must also have been spent in a position that was managerial, executive or involved specialized knowledge, and the employee's prior education, training and employment must qualify them to perform the intended services.

The regulation then adds a point that is easy to miss and often helpful: the work in the United States need not be the same work the employee performed abroad. A manager abroad may come to perform a different managerial role, and a specialized knowledge employee may apply that knowledge in a different setting. What must match is the capacity, not the job.

Both halves of the year requirement are examined. The employment must have been full-time, with a qualifying organization, and in a qualifying capacity. A year spent abroad with an entity that turns out not to satisfy the relationship definitions is not a qualifying year, however long it lasted, which is one reason the relationship evidence is assembled before the personnel history rather than after it.

Managerial and executive capacity

The definitions are statutory and specific. A managerial capacity means an assignment in which the employee primarily manages the organization or a component of it, supervises and controls the work of other supervisory, professional or managerial employees or manages an essential function, holds authority over personnel actions or functions at a senior level with respect to the function managed, and exercises discretion over day-to-day operations of the activity or function.

Executive capacity means an assignment in which the employee primarily directs the management of the organization or a major component or function, establishes goals and policies, exercises wide latitude in discretionary decision-making, and receives only general supervision from higher executives, the board or the stockholders. Both definitions describe what the person primarily does, which is why a duties description that lists mostly operational tasks tends to defeat the claim.

The requirement that the capacity be primary is the operative word in both definitions. An employee who manages a function and also performs a substantial share of the work within it is a common and difficult case, and the answer turns on the balance rather than on whether any operational work is done at all. A description that quantifies the balance is more useful than one that asserts it.

Duration, blanket petitions and what follows

The period of authorized admission is limited to seven years for a manager or executive and five years for an employee in a specialized knowledge capacity. Those ceilings shape planning, because a transfer intended to be permanent has to be converted into a residence route well before the ceiling arrives, and the parallel residence category is described in the permanent route for a transferred manager.

Larger organizations may use a blanket petition, which obtains continuing approval of the petitioner and specified related entities as qualifying organizations, subject to thresholds concerning the number of related entities, the period the United States office has been doing business, and a measure of size expressed through prior approvals, sales or workforce. The blanket route removes the relationship question from each individual case, which is why the relationship evidence described in proving the companies are related repays the effort.

Where the intended role is not clearly managerial, the alternative basis is examined in specialized knowledge and why it is refused so often. Organizations weighing the two characterizations frequently ask an intracompany transfer attorney to assess the structure and the role together before a petition is drafted, because the choice between them shapes the evidence, the duration available and whether a residence route exists at the end of it.