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EB1C Multinational Managers & Executives

The Legal Standard

The Immigration and Naturalization Act (the “Act”) Section 203(b)(1)(C) provides:

An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission in the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

USCIS regulation further provides that “A United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(1)(C) of the Act as a multinational executive or manager. See  8 C.F.R. Section 204.5(j)(1). 

A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:

(A)  If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

(B)   If the alien is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;

(C)  The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas.

(D)  The prospective United States employer has been doing business for at least one year. See 8 C.F.R. Section 204.5(j)(3).

Subsidiary means 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, 50 percent of a 50-50 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.  See 8 C.F.R. Section 204.5(j)(2)

Doing business means the regular, systematic, and continuous provisions of goods and /or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office. See Id.

Executive capacity means an assignment within an organization in which the employee primarily:

(A)  Directs the management of the organization or a major component or function of the organization;

(B)   Establishes the goals and policies of the organization, component, or function;

(C)   Exercises wide latitude in discretionary decision-making; and

(D)  Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. See Id.

Managerial capacity means an assignment within an organization in which the employee primarily:

(A) Manages the organization, or a department, subdivision, function, or component of the organization;

(B)  Supervises and controls the work of other supervisory, professional, or managerial employees, or managers an essential function within the organization, or a department or subdivision of the organization;

(C)  If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the functions managed; and

(D) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.  See Id.

Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts

business in two or more countries, one of which is the United States. See Id.

A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional. See 8 C.F.R. Section 204.5(j)(4)(i).

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the reasonable needs of the organization, component, or function, in light of the overall purpose and stage of development of the organization, component, or function, shall be taken into account.  An individual shall not be considered to be acting in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed.  See 8 C.F.R. Section 204.5(j)(4)(ii).  

No labor certification is required for this classification; however, the prospective employer in the United States must furnish a job offer in the form of a statement which indicates that the alien is to be employed in the United States in a managerial or executive capacity.  Such letter must clearly describe the duties to be performed by the alien.  See 8 C.F.R. Section 204.5(j)(5).

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The Q & A

1)  What is so great about EB1c? 

Multinational managers and executives can apply for EB1c green card.  Even though it is called “multinational”, this category is actually perfect for small to premium businesses having cross-border operations. An EB1c application, if successful, means that you will get a green card within about 6 – 8 months after filing, whichever country you were born.  It does have to have a job offer, which means an employer must sponsor you by signing the application forms.  

2)  
So how do I qualify for an EB1c?

You can refer to the legal standards to left of this Q & A but practically a) the petitioner will sponsor you for a managerial or executive position and b) you have worked as a manager or executive for a parent, subsidiary or affiliate of the US sponsor overseas either during the 3 years prior to your application or 3 years prior to your initial admission to the US if you are currently working for the US sponsor.  

3)  What is a typical background for a successful EB1b applicant?

There is no regulation or legal standard for the EB1c applicant other than that the applicant must be qualified to perform managerial duties.  This is to say that the applicant does not have to possess a Bachelor degree or meet any other educational requirement.

4)  How long does the US business have to be existence before it can apply for its employees?

The US business must do business for at least one year before you can apply EB1c for its employees.

5)  I don’t have any business now in US, but I do have a business or employed as an executive or manager outside US.  How can I apply for EB1c then?

You can apply for an L-1 for a new company that will give you a visa for 1 year.  Before the end of the 1 year, we will extend your status for another 2 years.  Right after extension is secured, we can apply for EB1c for you.

6)  It will take too long for me to build a business in US by starting a new company. I do have a business outside US.  Can I apply for EB1c?

Yes, we can buy a business here in US and then petition you for the EB1c right away.

7)  
I am an executive or manager with quite some achievements in business, can I apply for EB1a alien of extraordinary ability or national interest waiver?  

It is possible and please refer to the legal standard on the EB1a page for further information regarding specific requirements for EB1a. 

8)  I have worked for foreign employer a long time ago as a manager and I came to the United States on a visa that is not sponsored by the foreign employer.  But the US affiliate or parent or subsidiary is willing to hire me as a manager, can I still apply for EB1c?

There is a possibility that you can.  Please contact us for more details.

9) I am a business owner outside US.  What is the advantage of applying for EB1c compared with EB5 investor visa?

There are a few advantages. First, with EB1c You can invest the money into your own business. Second, there is no period of conditional residency and the green card you will obtain though EB1c is permanent or without conditions.  Third, there is no requirement that the US employer must employ 10 full time employees.  

9)  What is the approval rate of your EB1c cases?

So far we have a 100% approval rate for EB1c cases.
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