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From Gary Endelman
"How To Win A Functional Manager Case"
Many lawyers read a great deal about "functional management" but not nearly
as many have extensive experience with using such theory in either the L-1A
or multi-national manager context. The purpose of this article is to get
down and dirty, to focus solely on practice pointers that may prove useful
to the creative advocate the next time a potential functional manager walks
into your office. These techniques have worked for me and I hope they work
for you as well. Here is my list and I look forward to hearing from readers
who have their own special insights:
- No definition of "function" in case law or BCIS regulations. The only
limit is your own creative imagination.
- Allows the lawyer to be creative by defining what the "function" is.
- The function must be instantly understood- the examiner does not have
time to figure it out.
- Once you define the function, tell the BCIS why the function is
important. If you manage something important, that makes you important. If
you manage something that is not important, your client is not important.
- You set the agenda; you provide the information; you frame the terms of
the discussion or debate- enormous procedural advantages. The BCIS examiner
only knows what you tell them- it is as if the Judge only hears from one
side in a case.
- Know the limits of your case- If your claims go beyond what the facts
can support, you will lose credibility and it is very hard to get it back .
Without credibility, the case cannot be won.
- The biggest challenge in any functional manager case is that of
"visualization". You have to get your client to look at what he or she does
in a completely different way. Educate them what functional management
means, give them sanitized samples of other functional manager cases, and
convince them to focus not on what they KNOW but what they are in charge
of -if you can get the client to think of their job in a functionally
managerial light, you stand a much better chance of convincing the BCIS. Unless you
first convince your client, you will never convince the BCIS. Do not assume
that you can automatically or easily convince your client. They have a
great deal of emotional investment in looking at themselves and their jobs the
way they always have- they pride themselves on their technical expertise and
their sense of self-importance often depends on their technical expertise.
This leads them to believe that what is important is what the INS wants-
that what is important in the performance of the job makes them a
functional manager. THIS IS A BIG MISTAKE. WHAT IS IMPORTANT IS NOT NECESSARILY
MANAGERIAL IN THE FUNCTIONAL SENSE BECAUSE IT ALMOST ALWAYS EMPHASIZES
PERFOMANCE OF THE FUNCTION AND NOT MANAGEMENT OF IT
- No case can be won unless you get your client to think like the BCIS
thinks about the idea of functional management- the functional manager does
not "PERFORM" the function but "Manages" it. Job descriptions are not
written in stone. There is an infinite variety of ways to approach what
someone does if you are willing to step outside the box and be creative.The
very idea of a formal job description is an artificial construct that is
increasingly out of step with the way modern business operates. Focusing on
those duties that lend themselves to functional managerial treatment, or
redescribing normal duties from a functional managerial perspective is not
unethical but deeply creative and, when you institute appropriate quality
controls, the most creative contribution you can make to the success of the
- Emphasize words like "coordinate", "direct", "oversee", "strategic
guidance" and "leadership". De-emphasize words like "analyze", "evaluate",
"support" and "advise"- ties in to the performance v. management dichotomy
that must be kept in mind at all times. Words can have consequences. They
can either be building blocks in the argument for functional manager status
or weapons that the BCIS can throw back at you. Detail or specificity by
itself is either irrelevant or harmful if it creates the impression in the
mind of the BCIS examiner that your client is a highly trained technical
specialist who "performs" the function but is not in charge ofit. The only
detail that has any relevance is a fact that supports the functional
manager argument. That is the measuring stick by which all facts are judged. If a
fact fails to measure up by that measurement, it does not belong in your
- Get the client to focus on the theories and concepts behind what they
do and not on the acts themselves since this is crucial to getting the clients
to think of themselves in a way they never have before- like a functional
- Most of your clients,and their management, will be suspicious of the
concept of "functional management" . They do not realize this is part of
the law and they have a hard time believing the concept of "management" is as
flexible as it is. They will instinctively dismiss this concept as bogus,
as fraud and you need to get them to understand that this is a valid and
viable option-not only the client but their managers need to become comfortable in
looking at the job through "new glasses" .
- Never rely solely on what your client tells you. Always get a US
manager and an international manager to review your statement in support for both
accuracy and completeness before submission to the BCIS. Some clients will
get offended, thinking you do not trust them. Explain to them that this
review is in their best interests, that the credibility of the case cannot
ever be compromised if they hope to win, and that this is particularly
necessary for an employer that has frequnet filings with the BCIS. Getting
this review will also reassure management that this is a bona fide strategy
in which they can believe. Nothing is worse than losing the confidence of
your client's management. Take the time to get their buy-in. These managers
may also point out an aspect of the functional management argument that you
need to revise or alert you to a powerful argument that you have
- Titles can help or hurt in creating the image in the mind of the BCIS
examiner that you need to make the sale If the title is helpful, use it
often. If the title is unhelpful, if it suggest an individual contributor
who performs the function but is not in charge of it, do not use ANY TITLE.
Focus instead on what the person does and not on what they are called.
- Avoid any "made up for immigration" titles. A title that is used for
functional manager purposes must also be used for other non-immigration
purposes. On the other hand, a person can have more than one title- an
internal title which is deflated to suit the culture and an external title
that may often be more suggestive of functional managerial status. In many
companies, particularly larger ones, "title deflation" is a real problem
and the use of generic titles is very misleading as to what the person does and
the extent of their supervisory responsibilities. Try to see if the title,
perhaps the external title, can be changed.
- The tool of the functional flow chart is the most powerful weapon you
have to give the BCIS a picture of why the case qualifies as a functional
manager. Put your client at the center of the chart. Use the chart to say
in images what you are saying in words- that your client is in charge of very
important activities and takes an active leadership role in their
management and direction. Have the client do it in color and powerpoint format. Give
them sanitized samples to go by. They know their job far better than you
ever will. Make sure the flow chart does not contradict what the narrative
argues- that it does not emphasize technical performance as opposed to
- Do not submit the functional flow chart as stand alone exhibits at the
end . Integrate them and embed them in the text of the narrative to
heighten their impact and MAKE IT EASY FOR THE BCIS EXAMINER TO APPRECIATE THEIR
IMPORTANCE. Give your client sanitized examples of statements in support
that have such embedded functional flow charts.
- Do not assume that you can only have one functional flow chart. Your
clients's functionally managerial responsibilities may be multi-faceted.
The client may actually manage more than one function. If so, you may want to
have several functional flow charts to reflect the different functions in
- In the EB-1 (C) case, be sure to have at least one functional flow
chart for the US and one for the international job. You can lose your case if you
do not prove that BOTH jobs are/were functionally managerial- not enough to
prove that the US job is functionally managerial.
- Be an interpreter for your client to the BCIS. Take what your client
gives you and express it in a language that the BCIS understands. Be an
interpreter from the BCIS to your client and express what the law and
regulations require in a language that the client understands.
- Every functional manager case goes through several iterations. Do not
become discouraged and do not let your client become discouraged. This is
the way a case gets better and the intelligent client soon understands that
and is often able to grasp where you are heading long before you get there
Do not dismiss this advice as mere word games. Nothing could be more wrong.
The lawyer must do more than understand the law and regulations; that is
where you start but not where either you or your client should end up. If
you can open up the eyes of your client, their management, and the BCIS
examiner to a functionally managerial role that no one may even have
suspected could or did exist, you would have done what the canons of
professional ethics command that we all do every day- serve as a zealous
advocate for the interests of our client.
Sample Documents for Functional Managers
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