Executive and supervisory character
The applicant’s position must be principally and primarily, as opposed to incidentally or collaterally, executive or supervisory in nature. Executive and supervisory duties are those which provide the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof. Following points are considered in determining whether the applicant has established possession of the requisite control and responsibility:
- An executive position is one which provides the employee with great authority to determine the policy of, and the direction for, the enterprise;
- A position primarily of supervisory character provides the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees, and;
- Whether the applicant possesses executive and supervisory skills and experience; a salary and position title commensurate with executive or supervisory employment; recognition or indicia of the position as one of authority and responsibility in the overall organizational structure; responsibility for making discretionary decisions, setting policies, directing and managing business operations, supervising other professional and supervisory personnel. If the position requires some routine work usually performed by a staff employee, such functions may only be of an incidental nature.
Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the treaty enterprise. Following points are considered in determining whether the skills possessed by the alien are essential to the operation of the employing treaty enterprise:
- The degree of proven expertise of the alien in the area of operations involved; whether others possess the applicant’s specific skill or aptitude; the length of the applicant’s experience and/or training with the treaty enterprise; the period of training or other experience necessary to perform effectively the projected duties; the relationship of the skill or knowledge to the enterprise’s specific processes or applications, and the salary the special qualifications can command. Mere knowledge of a foreign language and culture does not, by itself, meet the special qualifications requirement, and;
- Whether the skills and qualifications are readily available in the United States.