Challenging the “Authority to Hire and Fire” Requirement for L-1A Managers

Following the second round of H-1B selections, less than 25% of eligible registrations were selected, leaving employers to look to alternate nonimmigrant visa options to bring the foreign talent they need to the United States.

The L-1A visa, used for intracompany transfer for multi-national managers, continues to be one of the most common alternatives to the H-1B, allowing employers to rely on their known foreign resources who have proven their skills and abilities and hold institutional knowledge of their company’s business.

Though a great alternative to the H-1B since it allows employers to bring highly skilled and known managers to the U.S., the L-1A visa does have its pitfalls and complications, particularly regarding evidencing some of the fundamental requirements for the classification. 

Sometimes there is a clear disconnect between the current ways in which companies operate and the guidance, or lack thereof, provided by government agencies related to hiring and firing of foreign talent.

By regulation, to qualify as an L-1A manager, the petitioner must demonstrate that the beneficiary will do the following:

• Manage the organization or a department, subdivision, function, or component of the organization;
• Supervise and control the work of other supervisory, professional or managerial employees, or manage an essential function, within the organization, or a department or subdivision of the organization;
• Has the authority to hire and fire or recommend those, as well as other personnel actions (such as promotion and leave authorization), if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or concerning the function managed; and
• Exercise discretion over the day-to-day operations of the activity or function for which the employee has authority.

Definition of authority to hire and fire

Adjudicators frequently emphasize the beneficiary’s authority to hire and fire, or their ability to make recommendations for hiring and firing. The basic definition of the verb “hire” is to employ someone for wages, while “fire” means to dismiss an employee from a job. Finally, “having authority” means having the power or right to give orders and make decisions. By those definitions, the requirement is that the manager has the power or right to employ someone for wages or dismiss an employee from a job. The concept seems simple, and in many situations it is.

Documentation of this authority may include correspondence with Human Resources, receiving resumes from candidates, evidence of interviews, assessments made of candidates, etc.  Firing authority may be shown through subordinates’ evaluations and communications with HR confirming the intent to dismiss the subordinate. 

A review of the standard definition of the authority to hire does not make a distinction as to whether the candidate is external to the employer or is an internal candidate looking to move into a new position. When assessing or hiring external candidates, evidence of the ability to hire and fire is standard and straightforward. But what happens with companies where managers, as a matter of policy or internal practice, are required to consider internal candidates first? Does that mean those managers do not qualify for an L-1A because they are not hiring an external candidate but rather allocating a resource from one division to another?

USCIS challenges external candidates versus internal resources

Challenges posed by Requests for Evidence from USCIS primarily revolve around the extent of the authority vested in a prospective manager to hire or make those recommendations simply because the initial evidence provided showed the ability to hire or re-allocate an internal candidate. USCIS states that this re-allocation is not the same as hiring an external candidate. Thus, the beneficiary did not meet the requirements for an L-1A manager. 

However, as with a review of the standard definitions, the regulations do not mention that the hiring authority is limited to external candidates only. It merely states the authority to hire or recommendations thereof.  All a petitioner should have to show is the potential L-1A manager has the power to employ someone for wages. Just because someone is already employed for wages for the same petitioner does not mean that the L-1A manager does not have the power to hire them.

Hiring an internal resource is like hiring an external candidate

Considerations when hiring an internal resource are not materially different than hiring an external applicant:

• Determining staffing requirements and allocating costs for those staffing requirements within a budget
• Assessing requirements for an open position
• Setting the salary
• Selecting a candidate, including reviewing resumes; interviewing; contacting references; assessing applicants’ qualifications; choosing the appropriate candidate for the position; making an offer of employment
• Evaluating employee performance

These actions have a direct financial impact on the organization and carry the potential of having employment law consequences for the company.

Setting aside for a moment the issue of whether hiring an internal resource versus an external candidate is the same (and should be treated the same when evaluating eligibility for L-1A status), USCIS has also challenged whether these actions are those of a manager or an HR professional. 

When faced with this issue, it is prudent to compare what HR’s responsibilities are versus those of a manager. For example, the manager determines the staffing requirements and sets job requirements, but HR generally posts the job opening announcement and serves as the first-level reviewer of potential candidates. 

Even if the potential manager does not have the actual authority to hire or fire because perhaps it must go to a higher-level manager in the chain of command—but does have the ability to recommend the hiring or firing—again, no distinction is drawn between internal or external candidates. 

Evidence of the ability to recommend other personnel actions could include emails or screenshots showing approving leave, mentoring subordinates (whether formally or informally), promotions, awards, recommending bonuses or raises or planning career trajectories.

When USCIS issues L-1A denials, it does not tend to explain why the hiring of an internal resource is not the same as hiring an external candidate. Instead, the agency only states they are not the same, and therefore the beneficiary does not qualify as a manager. As a result, employers are left with little recourse.

Need to know more?

For further information or if you have questions about L-1A issues, please reach out to Senior Associate Stephanie Weaver at [email protected].

This blog was published on November 17, 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.