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IMMIGRATION OCTOBER 11, 2024 | The Indian Eye 38

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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