1.
The U.S. Employer's Business Relationship
The
EB1 Multinational Executive or Managerial
immigration category is designed to facilitate international transfer of
executive or managerial personnel within multinational companies.
This
immigrant visa category is also can be used for
executives and managers who are "starting-up" business operations in
the U.S. for foreign corporations, as well those being transferred to the U.S.
by large international corporations based in the U.S. or abroad.
The
international transfer of
executive or managerial personnel into U.S. can be between different branches of the same company, or between different
companies. In
this EB1 immigration category, the employee must have worked in either a managerial or executive
capacity, for the related company abroad, for at least a one-year period in the
three years preceding the transfer.
The employee should be coming to the United States company to function in an
executive or managerial capacity. The employee may already be in the United
States in a non-immigrant visa status such as the L-1A visa or one of the E visa
classifications.
The U.S. company must show that it is either the parent, subsidiary, affiliate,
or branch office of the company abroad, and the relationship between the U.S. and
overseas operations must be documented and proved.
2.
The Multinational Relationships
The corporate relationship between the foreign employer and the prospective U.S. employer must be a qualifying one. The immigration regulations provide the following
definitions:
1)
Subsidiary: it means a firm, corporation or other qualifying entity of
which a parent, owns, directly or indirectly, the entity and controls the
entity. This suggests that a subsidiary relationship is based more on control
than actual majority ownership.
A subsidiary relationship will exist even if the parent owns less than half the subsidiary entity, so long as the parent exercises
the control over the subsidiary. Obviously, if the parent owns less than half of the subsidiary, more extensive documentation must be shown to establish such
control.
2)
Affiliate: it is defined to include one of two subsidiaries both of which are owned and controlled by the same parent or
individual:
-
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.
This definition therefore includes situations where a group of individuals collectively control each entity and where the each individual in the group owns shares in approximately the same proportion for each entity. Not all shareholders have to own shares in the other entity, as long as the control group meet the requirements under this definition.
For
example, the meaning of "affiliate" includes certain international accounting firms. Where such firms market accounting services under the same internationally recognized name,
or under an international partnership or similar organization, the foreign partnership is considered an affiliate of the U.S.
partnership.
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