1. Managerial
Capacity: Refers to an assignment within
an organization in which the employee primarily:
-
manages the organization or a
department, subdivision, function or component,
or,
-
supervises and controls the work
of other supervisory, professional, or managerial
employees, or manages an essential function within
the organization, or a department or subdivision
thereof;
-
has the authority to hire and fire
or recommend those actions (promotion, leave authorization,
etc.) 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 with respect to
the function managed; and d) exercises discretion
over the day-to-day operations of the activity
or function for which the employee has authority.
A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue
of supervisory duties unless the employees supervised
are professional.
2. Executive Capacity:
Refers to an assignment within an organization in which
the employee primarily
- directions the management of the organization
or major component or
function thereof;
-
establishes the rules and policies
of the organization, components, or functions;
-
exercises wide latitude in discretionary
decision-making; and,
-
receives only general supervision
or direction from higher level executives, the
Board of Directors, or stockholders of the organization.
3. Specialized
Knowledge: This is knowledge, possessed by
an individual, of the U.S. employer's product, service,
research, equipment, techniques, management, or other
interests and its application in international markets,
or an advanced level of knowledge or expertise of
the employer's processes and procedures.
4. Qualifying
Organization: This refers to a U.S. or foreign
firm, corporation, or other legal entity which is,
or will be, doing business as an employer in the U.S.
and in at least one other country, directly or through
a parent, branch, affiliate, or subsidiary, for the
duration of the foreign national's stay in the U.S.
as an intra-company transferee, and which meets exactly
one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate, or subsidiary.
5. Parent:
A firm, corporation, or other legal entity which has
subsidiaries.
6. Branch:
An operating division or office of the same organization
housed in a different location.
7. Subsidiary:
A firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half
of the entity and controls the entity; or owns, directly
or indirectly, half of the entity and controls the
entity; or owns, directly or indirectly, fifty percent
of the fifty-fifty joint venture and has equal control
and veto power over the entity; or owns, directly
or indirectly, less than half of the entity but in
fact controls the entity.
8. Affiliate:
One of two subsidiaries, both of which are owned and
controlled by the same parent or individual, or one
of two legal entities owned and controlled by the
same group of individuals, each individual owning
and controlling approximately the same share or proportion
of each entity. The paramount issue is that of control.
If A & B each own 26% of both the U.S. and foreign
entities, it is irrelevant who owns the remaining
48% of either organization.
9. New Office
in the U.S.: An organization which has been
doing business in the U.S. through a parent, branch,
affiliate or a subsidiary for less than one year.
10. Doing Business:
The regular, systematic, and continuous provision
of goods and/or services by a qualifying organization
and does not include the mere presence of an agent
or office of the qualifying entity of organization
in the U.S. and abroad.
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