EB1C Q&A - USA Immigration Law

Q: What is an EB-1(c) visa?

A: An EB-1(c) visa is an employment-based, first-preference visa for multinational executives or managers. The visa requires that you must have been employed outside the United States in the three years preceding the petition for at least one year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

Q: What must be shown to be successful on an EB-1(c) multinational executives and managers petition?

A: The petitioner must demonstrate that the:

U.S. organization and the organization abroad maintain a qualifying relationship;
U.S. organization and the organization abroad are both actively engaged in doing business; and
U.S. organization has been actively engaged in doing business for at least one year.

The petitioner must also demonstrate that the U.S. organization has the ability to pay the beneficiary’s salary.

Q: What is a “qualifying relationship”?

A: When an employer wishes to transfer an alien employee working abroad to a U.S. company location as an EB1C immigrant, a qualifying relationship must exist between the foreign employer and the U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity.

Q: How do you establish a “qualifying relationship”?

A: To establish a “qualifying relationship” under the Act and the regulations, the petitioner must show that the beneficiary’s foreign employer and the proposed U.S. employer are the same employer (i.e., a U.S. entity with a foreign office) or related as a “parent and subsidiary” or as “affiliates.” In this regard, “ownership” and “control” are the factors that must be examined in determining whether a qualifying relationship exists between the United States and foreign entities for purposes of this visa classification. The foreign entity must own and control the U.S. entity

In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control; control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.

Q: What is a “subsidiary” and a “parent”?

A: Under 8 CFR 204.5(j)(2), the term “subsidiary” means a firm, corporation, or other legal entity of which a parent: (a) owns, directly or indirectly, more than half of the entity and controls the entity; (b) owns, directly or indirectly, half of the entity and controls the entity; (c) owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or (d) owns, directly or indirectly, less than half of the entity, but in fact controls the entity.

While the term “parent” is not directly de fined by the regulations, it is the owner of a subsidiary.

Q: What is an “affiliate”?

A: 8 CFR 204.5(j)(2)(A) – (C) sets forth three types of qualifying affiliate relationships:

One of two subsidiaries, both of which are owned and controlled by the same parent or individual;
One of two legal entities owned and controlled by the same group of individuals, each owning and controlling approximately the same share or proportion of each entity; or
A partnership (or similar organization) that is organized outside the United States to provide accounting services to the U.S. partnership. Such a partnership shall be considered affiliated with a partnership organized within the United States if the foreign partnership markets its services under the same internationally recognized name acquired through an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or other similar organization) as the U.S. partnership.

Q: What is a “branch office”?

A: While the L-1 nonimmigrant visa regulations allow for a “branch office” to petition for a manager or executive, the EB1C immigrant visa regulations do not provide for a foreign branch office as a petitioner. The nonimmigrant regulations define the term “branch” as “an operating division or office of the same organization housed in a different location.”

Neither an unincorporated branch office of a foreign employer nor a nonimmigrant alien is competent to offer permanent employment to a beneficiary for the purpose of obtaining an immigrant visa for the beneficiary under Section 203(b)(1)(C) of the Act. The petitioner must be a U.S. citizen, corporation, partnership, or other legal entity to file this immigrant visa petition. Thus, a U.S. corporation with an overseas branch may file an EB1C petition, but a foreign corporation with a branch office in the United States may not.

Q: What is the difference between a “self-incorporated” petitioner and a “sole proprietorship”?

A: Although a self-incorporated individual may only have one owner or employee, a corporation is a separate and distinct legal entity from its owners or stockholders and may petition for that owner or employee. A “sole-proprietorship,” on the other hand, is a business in which one person operates the business in his or her personal capacity. Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner. A sole-proprietorship may not file an EB1C petition on behalf of the alien owner, as such would be considered an impermissible self-petition.

Q: What is a limited liability corporation (LLC)?

A: An LLC is deemed to be a separate entity from its members, and may therefore file an immigrant visa petition on behalf of a manager or executive. An LLC is a relatively new business structure allowed by state statute. LLCs are popular because, similar to a corporation, owners have limited personal liability for the debts and actions of the LLC. Other features of LLCs are more like a partnership, providing management flexibility and the benefit of pass-through taxation. LLCs may have one or more members. This is only a mechanism for tax purposes, and does not change the fact that the LLC is legally a separate entity from the member. Similarly, even though most multiple member LLCs file a Form 1065 partnership tax return, the LLC is still, legally, a separate entity.

Q: What does “doing business” mean?

A: “Doing business” means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization. Doing business does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Q: What is the “doing business” requirement?

A: Both the U.S. employer and at least one qualifying organization abroad must be doing business up until the time of visa issuance or adjustment of status. The mere presence of an office or an agent either in the United States or abroad is not considered to be doing business for EB1C purposes.

If the beneficiary’s overseas employer’s foreign operations cease entirely (e.g., the company, together with all other otherwise qualifying related organizations, goes out of business or if the company, together with all otherwise qualifying related organizations relocates completely to the United States) prior to the time of visa issuance or adjustment of status, the beneficiary will no longer be eligible for EB1C immigrant visa classification.

The U.S. petitioner must be actively engaged in doing business for at least one year at the time of filing of the petition. There is no “new office” provision for persons seeking to immigrate under the EB1C category as there is for certain aliens who seek admission as L-1 nonimmigrants in order to open or be employed in a new office in the United States. Note that because of the “doing business” requirement, a U.S. organization may have a legal existence in the United States for more than one year, but if it has not engaged in the continuous provision of goods and services for at least one year, then the organization is ineligible to file EB1C petitions.

Q: What must the petition contain?

A: An I-140 filed on behalf of an executive or manager must be accompanied by a permanent job offer in a primarily managerial or executive position with a qualifying U.S. employer. A labor certification is not required for this classification. Under 8 CFR 204.5(j)(3)(i)(A), the petition must demonstrate that the beneficiary was employed abroad by a qualifying organization for one year out of the previous three years. Unlike the L-1 nonimmigrant classification, the year of qualifying employment does not have to be “continuous.”

The regulations at 8 CFR 204.5(j) (3)(i)(D) require that the petitioning U.S. employer have been doing business in the United States for at least one year before filing an I-140 petition for its managers and executives. Also, as noted above, unlike the L-1A nonimmigrant classification, aliens seeking to enter the United States to open a new office are not eligible for the EB1C immigrant classification. The regulations at 8 CFR 204.5(j)(3)(D) specifically require that the individual be coming to an existing business in the United States.

Q: What is “managerial capacity”?

A: The statutory definition of “managerial capacity” allows for both “personnel managers” and “function managers.”

As it relates to “personnel managers,” managerial capacity means an assignment within an organization in which the beneficiary primarily:

Manages the organization, department, subdivision, function, or component of the organization;
Supervises and controls the work of other supervisory, professional, or managerial employees;
Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and
Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

As it relates to “function managers,” managerial capacity means an assignment within an organization in which the beneficiary primarily:

Manages the organization, or a department, subdivision, function, or component of the organization;
Manages an essential function within the organization, or a department or subdivision of the organization;
Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

It must be clearly demonstrated, however, that the “essential function” being managed is not also being directly performed by the alien beneficiary. For example, an alien who claims to primarily direct the laboratory research on chemical compounds for a specialty chemical company cannot also be primarily performing the day-to-day laboratory research. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.

An important, although not necessarily determinative, factor in determining whether an individual qualifies as a functional manager is the alien’s authority to commit the company to a course of action or expenditure of funds. Functional managers perform at a senior level in the organization and may or may not have direct supervision of other employees.

Q: What is executive capacity?

A: The statutory definition of the term “executive capacity” focuses on a person’s position within an organization. The term “executive capacity” means an assignment within an organization in which the employee primarily:

Directs the management of the organization or a major component or function of the organization;
Establishes the goals and policies of the organization, component, or function;
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.

An individual will not be deemed an executive under the statute simply because they have an executive title or because some portion of their time is spent “directing” the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the individual. In this regard, there must be sufficient staff (e.g., contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function. The petitioner must also establish that the U.S. entity itself is in fact conducting business at a level that would require the services of an individual primarily engaged in executive (or managerial) functions. In making this determination, you should consider, as appropriate, the nature of the business, including its size, its organizational structure, and the product or service it provides.

Q: How is managerial or executive status evaluated?

A: When examining the executive or managerial capacity of the beneficiary, an adjudicator looks to the petitioner’s description of the job duties. Specifics are an important indication of whether a beneficiary’s duties are primarily executive or managerial in nature. Merely repeating or paraphrasing the language of the statute or regulations does not satisfy the petitioner’s burden of proof.

If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary’s job duties must demonstrate what proportion of the beneficiary’s duties is managerial in nature, and what proportion is non-managerial. A beneficiary that primarily performs non-managerial or non-executive duties will not qualify as a manager or executive under the statutory definitions.

Beyond the petitioner’s description of the beneficiary’s proposed job duties, adjudicators review the totality of the evidence, including descriptions of a beneficiary’s duties and his or her subordinate employees, the nature of the petitioner’s business, the employment and remuneration of other employees, and any other facts contributing to a complete understanding of a beneficiary’s actual role in a business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an organization’s structural hierarchy; in this regard, artificial tiers of subordinate employees and inflated job titles are not probative.

If staffing levels are used to determine whether a beneficiary’s job capacity is primarily “executive” or “managerial” in nature, the reasonable needs of the business enterprise in light of its overall purpose and stage of development shall be considered. However, in evaluating reasonable needs, an adjudicator should not hold a petitioner to his or her undefined and unsupported view of “common business practice” or “standard business logic.” It is the petitioner’s burden to demonstrate the company’s reasonable needs with respect to staff or the organization’s structure.

A single-person office is not precluded from being classified as an multinational manager or executive for EB1C purposes, provided the requisite corporate affiliation exists and all other requirements are met. It may be very difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial (or executive) function. While a sole employee or “self-employed” person will have some managerial (or executive) duties, simply to keep the business running, he or she will normally be spending the majority of his/her work time doing the day-to-day work of the business, that is, performing the type of duties that persons who would normally be employed in the business in question would perform, were the alien not self-employed.