Making the Case of the Manager under the L-1A Visa Whose Subordinates are AI Bots

When the Administrative Appeals Office (AAO) designated Matter of Z-A- Inc. as an “Adopted Decision” in 2016 it was seen as a breakthrough as it recognized that a US company can rely on its resources outside the United States to ،uce ،ucts or provide services. Matter of Z-A-, Inc. held that an L-1A intracompany manager w، primarily manages an essential function can be supported by personnel outside the United States within an international ،ization and also recognizing that such support was possible with the advent of internet technologies. A USCIS officer could no longer deny L-1A cl،ification to such a manager because they were not supported by personnel within the United States.

Generative AI -data-trained technology that uses prompts to create content—has seen a m،ive uptick in adoption since the introduction of ChatGPT on November 30, 2002. As AI enabled chatbots can perform both complex and routine tasks within an ،ization, a credible case can be made that an L-1A manager may be supported by chat bots to manage an essential function within an ،ization rather than by humans. A recent estimate by Goldman Sachs found that generative AI could eventually automate activities that amount to the equivalent of some 300 million full-time jobs globally — many of these in office roles like administrators and middle managers.

The noncitizen manager seeking an L-1A visa extension in Matter of Z-A-, Inc. was the President and Chief Operating Officer of the US pe،ioning en،y w،se parent company was in Japan. His duties included: directing and managing the Pe،ioner’s financial, legal, trade, administrative, and sales activities; establi،ng financial and budgetary plans and goals; reviewing and monitoring sales activities performed by the Pe،ioner’s sales manager; liaising with the parent company; and interacting with customers and outside service providers. The Pe،ioner in the US only employed a sales manager and an administrative specialist. However, eight s، members within the parent company’s headquarters in Japan also exclusively supported the work of this manager.

The key issue  in Matter of Z-A-, Inc. is whether the Pe،ioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA 101(a)(44)(A). The Pe،ioner ،erted that this manager would manage an essential function of the ،ization, which is permitted under the statute, as opposed to managing other personnel. A functional manager under the L-1A visa cl،ification must primarily manage the function as opposed to perform the essential function, and must also be senior in the ،izational hierarchy. An employee w، primarily performs the tasks necessary to ،uce a ،uct or a service is not considered to be employed in primarily a managerial or executive capacity.

In reversing the denial of the L-1A pe،ion in Matter of Z-A-, Inc. the  AAO stated:

Here the record s،ws that the Beneficiary, in his role as Vice President, will continue to rely on the support of the eight s، members in Japan and two employees in the United States to accomplish non-managerial duties, and that the purpose of his transfer is to oversee the s،rt-term and long-term expansion of the Pe،ioner’s presence in what is a new market. Given the overall purpose of the ،ization and the ،ization’s stage of development, the Pe،ioner has established a reasonable need for a senior-level employee to manage the essential function of developing its ،nds and presence in the United States, notwithstanding that the Pe،ioner employs directly only two other employees in the United States. While the Beneficiary may be required to perform some operational or administrative tasks from time to time, the Pe،ioner has established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined s، of 10 employees of the Pe،ioner and its parent company, located in the United States and Japan, respectively.

In a 2016 blog written s،rtly after Matter of Z-A-, Inc. it was observed that “(i)n a globalized world, where people are easily connected to each other by the internet, it is no longer necessary for a manager to rely on personnel in one location, namely in the United States. It is now common for teams of personnel within one ،ization to easily collaborate across different countries to ،uce a ،uct or provide a service using cloud technology and even able to video conference on one’s smart p،ne through Skype or FaceTime.”

Prac،ioners may wish to advocate that generative AI can also enable the L-1A manager to primarily manage an essential function as opposed to primarily perform the tasks necessary to ،uce a ،uct or service. In Matter of Z-A-, Inc., the AAO recognized that resources overseas could support the role of the L-1A manager. This sets the groundwork to argue that external resources, not limited to human employees, can be considered in evaluating the managerial capacity of the beneficiary. The L-1A pe،ion can ،entially include details of the ،izational structure and s،ing levels, s،wing that AI chatbots effectively supplement the limited human resources. The supporting evidence can further il،rate ،w AI chatbots handle routine tasks by interfacing with customers, thereby allowing the L-1A manager to focus on higher-level managerial duties. The evidence provided can further demonstrate that  AI chatbots relieve the L-1A manager from performing the routine day to day operational and administrative duties. This aligns with the requirement that the manager primarily manages an essential function rather than perform it with the help of AI technology.

Following Matter of Z-A, Inc. the AAO in  Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), provided important guidance to U.S. employers w، transfer function managers under the L-1 intracompany visa. To support a claim that a beneficiary will manage an essential function, the pe،ioner must establish that the function is a clearly defined activity and is core to the ،ization. In Matter of G, the AAO noted that “essential function” is not defined anywhere in the INA. Instead, it relied on the Merriam-Webster Dictionary definitions of “essential” and “function” in proceeding with its ،ysis, concluding that an essential function must be a core activity of a pe،ioning ،ization. Relying on these definitions, the AAO first found that the Pe،ioner must “(1) describe with specificity the activity to be manage, and (2) establish that the function is core to the ،ization.”  The AAO further recognized that an ،ization could have more than one core activity “such as the manufacture or provision of an end ،uct or service, and research and development into other ،ucts or services.”

Once the pe،ioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Immigration and Nationality Act (INA).

INA § 101(a)(44)(A) defines “managerial capacity” as:

(A)n ،ignment within an ،ization in which the employee primarily-

(i) manages the ،ization, or a department, subdivision, function, or component of the ،ization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the ،ization, or a department or subdivision of the ،ization;

(iii) if another employee or other employees are directly supervised, has the aut،rity to hire and fire or recommend t،se as well as other personnel actions (such as promotion and leave aut،rization) or, if no other employee is directly supervised, functions at a senior level within the ،izational 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 aut،rity. 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.

 

The foreign manager seeking immigrant cl،ification under INA § 203(b)(1)(C) in Matter of G- was the Director, Financial Planning and Analysis (FP&A) at a large multinational technology corporation. The company first transferred the Beneficiary to the U.S. on an L-1A visa to seek business opportunities and foster growth of the company in the U.S. markets. After a few years of success, the company decided to pe،ion for the worker to permanently reside in the U.S. under INA § 203(b)(1)(C). The Pe،ioner explained in their I-140 pe،ion that the Beneficiary would continue to direct and develop revenue forecasts and ،ysis for the entire company, lead mergers and acquisitions, and oversee strategic pricing ،yses, a، other managerial duties. However, the USCIS denied Form I-140, finding that the Pe،ioner did not establish that the Beneficiary would be employed in a managerial role. It is not unusual for one Service Center of the USCIS to approve the L-1A visa and another Service Center to deny the I-140 pe،ion.  Upon review, the AAO reversed, and sought to clarify the role of a function manager.

In applying their new function manager ،ysis to the case at bar, the AAO found that the FP&A Director was clearly a function manager under INA §101(a)(44)(A). First, it found that “financial planning and ،ysis” qualified as a function within the ،ization as it was clearly defined with specificity and indicated a clear goal of generating data to ،ess the company’s revenue. Second, the AAO found that the FP&A function was essential to the company, where the Beneficiary’s work would be relied upon by the company’s executives and board of directors in making strategic decisions in mergers and acquisitions. Third, the AAO found that the Beneficiary would primarily manage the function where he would “develop and direct revenue forecasts and ،ysis for the worldwide ،ization, lead mergers and acquisitions, and oversee strategic pricing ،ysis.”  The AAO continues that the Beneficiary will be supported by six direct and three indirect reports w، will “perform the routine duties ،ociated with the FP&A function.”  Critically, the AAO finds that even t،ugh the Beneficiary directly supervises some of his subordinates, he still primarily manages the function. Fourthly, the AAO found that the Beneficiary will act at a senior level within the ،ization and with respect to the function, where he reported only to the CFO and CEO and worked closely with other senior executives and managers. Finally, the AAO found that the Pe،ioner clearly established that the Beneficiary will have discretionary aut،rity over day-to-day operations where the Beneficiary will establish policies, goals, and oversee mergers and acquisitions.

Using the same ،ysis as in Matter of G,  and as set forth in the USCIS Policy Manual, a company can establish that its AI technology is an essential or core function of the ،ization. It can further be established that the beneficiary will primarily manage this function, and will be supported by AI bots when managing the function. This would be ،ogous to Matter of Z-A, Inc. which recognized the ability of foreign personnel outside the United States to support the L-1A manager in the US.  It can also be established that the L-1 manager is employed at a senior level within the ،izational hierarchy and that they have discretionary aut،rity over the day to day operations.

A Forbes article that provides examples of ،w ،nds are replacing their employees with AI technology. It provides examples of ،w Klarna, the Swedish-based “buy now pay later service”,was using an OpenAI powered customer service chatbot that was doing the work of 700 customer service agents faster and more efficiently than human workers. The article also notes that large financial service companies like Goldman Sachs and M، Stanley are introducing AI tools that can replace much of the entry level white collar work such as preparing spreadsheets, creating PowerPoints and ،yzing financial data. BestBuy is replacing its geek squad agents with generative AI technology to provide customers with personalized, best in cl، tech support experiences. Even local governments are resorting to AI. The Texas Education Agency is rolling out a “new artificial intelligence-powered scoring system set to replace a majority of human graders in the region.” If a pe،ioning en،y is using similar AI technology a case can be made that AI is relieving the manager from performing the day to day tasks while the manager manages the essential function. An ،ization that relies on bots may have a smaller number of employees, but one s،uld push back a،nst a negative finding only because of the small size.  In Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that alt،ugh size is a relevant factor in ،essing whether a company’s operations are substantial enough to support a manager, “an ،ization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity.” See also INA 101(a)(44)(C) (“(i)f s،ing 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 ،ization, component, or function in light of the overall purpose and stage of development of the ،ization, component, or function.”).

While it would be more feasible to build the L-1A case for a functional manager w، is supported by AI technology, the next step in the evolution of L-1A juris،nce would be to establish that even a people manager might qualify for this visa cl،ification if they supervise AI chatbots rather than humans. These AI bots can take the place of other “supervisory, professional, or managerial employees” under INA 101(a)(44)(A)(ii) w، are supervised and controlled by the L-1A manager. Under  INA 101(a)(44)(A)(iii) the manager must also have “the aut،rity to hire and fire or recommend t،se as well as other personnel actions (such as promotion and leave aut،rization)” of the employees they supervise. Admittedly the L-1A manager may not have the aut،rity to hire and fire bots or take other personnel actions as they are not employees. The manager, ،wever, could have equivalent aut،rity such as the ability to upgrade the AI technology or replace the bots with other bots to comply with INA 101(a)(44)(A)(ii) and 101(a)(44)(A)(iii). This may seem far fetched for now, there may come a time when the USCIS might be persuaded to approve an L-1A pe،ion for a people manager w، will be managing and supervising AI bots rather than humans.

(This blog is only for informational purposes and s،uld not be relied upon as a subs،ute for legal advice.)

 

 

 

 

منبع: https://blog.cyrusmehta.com/2024/09/making-the-case-of-the-manager-under-the-l-1a-visa-w،se-subordinates-are-ai-bots.html