USCIS Clarifies Definition of “Functional Manager” in EB-1 / L-1A Cases by Designating Matter of G-., Inc as an Adopted Decision
Matter of G-. involved a multinational technology-based product development corporation that had filed an an EB-1 I-140 (Multinational Manager) petition for an employee who would be engaged as a “Functional Manager”, in other words, one who would be primarily managing an essential function as opposed to managing personnel. The employer’s I-140 was denied by the Director of the Nebraska Service Center on the basis that the employer had not established that it would employ the Beneficiary in a managerial capacity.
The employer appealed the decision, indicating that the Director had erroneously misstated facts and abused his discretion in denying the petition. The appeal was sustained by the Administrative Appeals Office (AAO), which held that the employer had indeed sufficiently established that its employee would be engaged a qualifying “managerial capacity” and that he would be primarily managing an “essential function” within the organization.
The AAO’s decision was adopted in a USCIS policy memorandum and will be used to clarify the somewhat imprecise definition of a “Functional Manager” in EB-1 cases (and likely L-1A as well). In summary, the decision indicates that:
(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.
(2) Once the petitioner 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 Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.
The decision’s clarification ought to be somewhat helpful to employers and beneficiaries, but it is too early to say, given that every change/update to “Merit Based” immigration this year has been substantially negative.
Matter of G- Inc (PDF)
More than 300,000 Central American and Haitian Immigrants to Lose TPS: May Soon Face Deportation
New York Magazine reports that US Dept. of State has advised US Dept. of Homeland Security officials this week that the 300,000+ Central Americans and Haitians who are currently in the United States in a Temporary Protected Status will no longer be protected from deportation. This announcement arrives days prior to a highly anticipated DHS announcement on a decision to renew said TPS program.
“Per a letter from Secretary of State Rex Tillerson to DHS secretary Elaine Duke this week, the State Department believes that conditions in Central America and Haiti have now improved to the point that TPS designation is no longer necessary. The legally required assessment came as the DHS prepares to announce by Monday whether it will renew TPS protection for more than 60,000 Honduran and Nicaraguan immigrants in early January. Tillerson’s letter doesn’t bode well for them or for two other large groups of American residents: nearly 60,000 Haitian immigrants with TPS whose protection expires in late January, and almost 200,000 Salvadorans whose protection expires next March.
Some of these immigrants have been in the U.S. for as long as two decades, and many own homes and businesses. One study has estimated that TPS holders have almost 275,000 U.S.-born children in their families. Should the designations not be renewed, these immigrants would have at least six months to get their affairs in order and leave the country. If they chose to stay, they could face arrest and deportation.”
The U.S. Immigration Law Blog by Ashwin Sharma 
Ashwin Sharma interviewed by WJXT Channel 4 News about the Diversity Lottery Green Card program through which the alleged NYC Terrorist entered the USA
It appears that the NYC terror suspect Sayfullo Saipov entered the US because he was randomly selected to receive a US Green Card through the Diversity Lottery, a program that, in summary, grants 50,000 visas to those from “low admission” countries. The only other eligibility factors are that one must have a high school education or 2 years of work experience.
A cruel irony is that this suspect’s “truck-driving” experience could have been what qualified him to enter the U.S. with a green card. Another is that he very likely received a green card in a matter of months while our recent Math teacher client, who has taught for 10 years in H-1B status at a public school, must wait another 11-13 years for her green card.
Immigration doesn’t have to be a zero-sum game. We don’t have to eliminate the Diversity Lottery. But can’t we increase our vetting process and require DV lottery applicants to possess a Bachelors or Masters degree or even some skill that actually benefits the U.S.?
See also: https://www.news4jax.com/news/politics/what-is-the-diversity-visa-lottery_