Guest Article – How To Win A Functional Manager Case, By Gary Endelman

Copyrighted by, and reprinted with permission from, http://www.ilw.com. Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

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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:

1. No definition of "function" in case law or BCIS regulations. The only limit is your own creative imagination.

2. Allows the lawyer to be creative by defining what the "function" is.

3. The function must be instantly understood- the examiner does not have time to figure it out.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 case.

9. 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 of it. 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 case.

10. 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 manager.

11. 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" .

12. 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 overlooked.

13. 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.

14. 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.

15. 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 functional management.

16. 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.

17. Do not assume that you can only have one functional flow chart. Your clients' 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 question.

18. 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.

19. 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.

20. 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 together.

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.