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IMMIGRATION                                                      SEPTEMBER 27, 2024        |  The Indian Eye 44



                   Making the Case of the Manager under



           the L-1A Visa Whose Subordinates are AI Bots



        BY CYRUS MEHTA             by humans. A recent estimate by   INA 101(a)(44)(A). The Petitioner   an essential function as opposed to   sional, or managerial employees,
                                   Goldman Sachs found that gener-  asserted that this manager would   primarily perform the tasks neces-  or manages an essential function
               hen  the Administrative   ative AI could eventually automate   manage an essential function of the   sary to produce a product or service.   within the organization, or a de-
               Appeals  Office  (AAO)   activities that amount to the equiv-  organization, which is permitted   In Matter of Z-A-, Inc., the AAO   partment  or  subdivision  of  the
        Wdesignated Matter of Z-A-   alent of some 300 million full-time   under the statute, as opposed to   recognized that resources overseas   organization;
        Inc.  as  an “Adopted  Decision”  in   jobs globally — many of these in   managing other personnel. A func-  could support the role of the L-1A   •  (iii) if another employee or other
        2016 it was seen as a breakthrough   office  roles  like  administrators  and   tional manager under the L-1A visa   manager. This sets the groundwork   employees are directly supervised,
        as it recognized that a US company   middle managers.  classification must primarily manage   to argue that external resources, not   has the authority to hire and fire
        can rely on its resources outside the   The noncitizen manager seek-  the function as opposed to perform   limited to human employees, can be   or recommend those as well as
        United  States to  produce  products   ing an L-1A visa extension in Mat-  the essential function, and must   considered in evaluating the man-  other personnel actions (such as
        or provide services. Matter of Z-A-,   ter of Z-A-, Inc. was the President   also be senior in the organizational   agerial  capacity  of  the  beneficiary.   promotion and leave authoriza-
        Inc. held that an L-1A intracompany   and Chief Operating Officer of the   hierarchy. An employee who pri-  The L-1A petition can potentially   tion) or, if no other employee is
        manager who primarily manages an   US petitioning entity whose parent   marily performs the tasks necessary   include details of the organizational   directly supervised, functions at
        essential function can be supported   company was in Japan. His duties in-  to produce a product or a service is   structure and staffing levels, showing   a senior level within the organiza-
        by personnel outside the United   cluded: directing and managing the   not considered to be employed in   that AI chatbots effectively supple-  tional hierarchy or with respect to
        States within an international organi-  Petitioner’s  financial,  legal,  trade,   primarily a managerial or executive   ment the limited human resources.   the function managed; and
        zation and also recognizing that such   administrative, and sales activities;   capacity.  The supporting evidence can further   •  (iv) exercises discretion over the
        support was possible with the advent   establishing financial and budgetary   In reversing the denial of the   illustrate  how  AI  chatbots  handle   day-  to-day  operations  of  the
        of internet technologies. A USCIS   plans and goals; reviewing and mon-  L-1A petition in Matter of Z-A-, Inc.   routine tasks by interfacing with cus-  activity or function for which
        officer  could  no  longer  deny  L-1A   itoring sales activities performed by   the  AAO stated:  tomers, thereby  allowing  the  L-1A   the employee has authority.
        classification to such a manager be-  the Petitioner’s sales manager; liais-  Here the record shows that   manager to focus on higher-level   A  first-line  supervisor  is  not
        cause they were not supported by   ing with the parent company; and in-  the Beneficiary, in his role as Vice   managerial duties. The evidence   considered to be acting in a
        personnel within the United States.  teracting with customers and outside   President, will continue to rely on   provided can further demonstrate   managerial capacity merely by
            Generative AI -data-trained   service providers. The Petitioner in   the support of the eight staff mem-  that  AI chatbots relieve the L-1A   virtue of the supervisor’s super-
        technology that uses prompts to   the US only employed a sales man-  bers in Japan and two employees   manager from performing the rou-  visory duties unless the employ-
        create content—has seen a massive   ager and an administrative specialist.   in the United States to accomplish   tine day to day operational and ad-  ees supervised are professional.
        uptick in adoption since the intro-  However, eight staff members within   non-managerial duties, and that   ministrative duties. This aligns with   The foreign manager seeking
        duction of ChatGPT on November   the parent company’s headquarters   the purpose of his transfer is to   the requirement that the manager   immigrant classification under INA
        30, 2002. As AI enabled chatbots can   in Japan also exclusively supported   oversee the short-term and long-  primarily manages an essential func-  § 203(b)(1)(C) in Matter of G- was
        perform both complex and routine   the work of this manager.  term expansion of the Petitioner’s   tion rather than perform it with the   the Director, Financial Planning
        tasks within an organization, a cred-  The key issue  in Matter of   presence  in  what is a new  market.   help of AI technology.  and Analysis (FP&A) at a large
        ible case can be made that an L-1A   Z-A-,  Inc.  is  whether  the  Petition-  Given  the  overall  purpose  of  the   Following Matter of Z-A, Inc.   multinational technology corpora-
        manager may be supported by chat   er established that this manager   organization and the organization’s   the AAO in  Matter of G- Inc., Ad-  tion. The company first transferred
        bots to manage an essential function   would be employed in a qualifying   stage of development, the Petitioner   opted Decision 2017-05 (AAO Nov.   the  Beneficiary  to  the  U.S.  on  an
        within  an  organization  rather  than   “managerial capacity” pursuant to   has established a reasonable need   8, 2017), provided important guid-  L-1A  visa  to  seek  business  oppor-
                                                                  for a senior-level employee   ance to U.S. employers who transfer   tunities  and foster  growth of the
                                                                  to manage the essential func-  function  managers under the  L-1   company in the U.S. markets. After
                                                                  tion of developing its brands   intracompany visa. To support a   a few years of success, the company
                                                                  and presence in the United   claim that a beneficiary will manage   decided to petition for the worker
                                                                  States, notwithstanding that   an essential function, the petitioner   to permanently reside in the U.S.
                                                                  the Petitioner employs directly   must establish that the function is a   under INA § 203(b)(1)(C). The
                                                                  only two other employees in   clearly  defined  activity  and  is  core   Petitioner  explained  in their  I-140
                                                                  the United States. While the   to the organization. In Matter of G,   petition that the Beneficiary would
                                                                  Beneficiary may be required to   the AAO noted that “essential func-  continue to direct and develop rev-
                                                                  perform some operational or   tion” is not defined anywhere in the   enue forecasts and analysis for the
                                                                  administrative tasks from time   INA. Instead, it relied on the Mer-  entire company, lead mergers and
                                                                  to time, the Petitioner has es-  riam-Webster Dictionary definitions   acquisitions, and oversee strategic
                                                                  tablished by a preponderance   of “essential” and “function” in pro-  pricing analyses, among other man-
                                                                  of evidence that the Beneficia-  ceeding with its analysis, concluding   agerial duties. However, the USCIS
                                                                  ry will primarily manage an es-  that an essential function must be a   denied Form I-140, finding that the
                                                                  sential function, while day-to-  core  activity  of  a  petitioning  orga-  Petitioner did not establish that the
                                                                  day, non-managerial tasks will   nization.  Relying  on  these  defini-  Beneficiary  would  be  employed  in
                                                                  be performed by a combined   tions, the AAO first found that the   a managerial role. It is not unusual
                                                                  staff of 10 employees of the   Petitioner must “(1) describe with   for  one Service  Center  of  the US-
                                                                  Petitioner and its parent com-  specificity the activity to be manage,   CIS to approve the L-1A visa and
                                                                  pany, located in the United   and (2) establish that the function is   another Service Center to deny the
                                                                  States and Japan, respectively.  core to the organization.”  The AAO   I-140 petition.  Upon review, the
                                                                      In a 2016 blog written   further recognized that an organiza-  AAO reversed, and sought to clar-
                                                                  shortly after Matter of Z-A-,   tion could have more than one core   ify the role of a function manager.
                                                                  Inc. it was observed that “[i]  activity “such as the manufacture or   In applying their new function
                                                                  n a globalized world, where   provision of an end product or ser-  manager analysis to the case at bar,
                                                                  people are easily connected   vice, and research and development   the AAO found that the FP&A Di-
                                                                  to each other by the internet,   into other products or services.”  rector was clearly a function manag-
                                                                                             Once  the  petitioner  demon-
                     m of                                         it is no longer necessary for a   strates the essential function, it must   er under INA §101(a)(44)(A). First,
                                                                  manager to rely on personnel
                                                                                                                     it  found  that  “financial  planning
          CYRUS D. MEHTA & PARTNERS PLLC                          in one location, namely in the   establish that the beneficiary’s posi-  and analysis” qualified as a function
                                                                                                                     within the organization as it was
                                                                                          tion meets all criteria for “manageri-
                                                                  United States. It is now com-
                                                                  mon  for  teams  of  personnel   al capacity” as defined in 101(a)(44)  clearly  defined  with  specificity  and
                                                                                             within one organization to   (A) of the Immigration and Nation-  indicated a clear goal of generating

                                                                  easily collaborate across dif-  ality Act (INA).   data to assess the company’s reve-
                                                                  ferent countries to produce a   INA  §  101(a)(44)(A)  defines   nue. Second, the AAO found that
             	                                 
                      
                                                   
             ­       product or provide a service   “managerial capacity” as:  the FP&A function was essential to
               €   
              ‚                                                     using cloud technology and   •  [A]n assignment within an orga-  the company, where the Beneficia-
                                                                  even able to video conference   nization in which the employee   ry’s work would be relied upon by
                                                                  on one’s smart phone through   primarily-          the company’s executives and board
                                                                  Skype or FaceTime.”     •  (i) manages the organization, or a   of directors in making strategic de-
                                                                                                                     cisions in mergers and acquisitions.
                                                                                           department, subdivision, function,
                                                                      Practitioners may wish
                                                                  to advocate that generative   or component of the organization;  Third, the AAO found that the Ben-
          2              6th Floor                                AI can also enable the L-1A   •  (ii) supervises and controls  the   eficiary would primarily manage the
           
     
        	
     
         
                manager to primarily manage   work of other supervisory, profes-  function where he would “develop
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