1.
The U.S. Employer's Business Relationship
The
EB1 Multinational Executive or Managerial
(EB-1C) 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 running "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 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 alien 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 U.S. Company and
the Company Abroad
In order for an alien to be classified as an
EB1 Multinational Executive or Managerial
intra-company transferee, there must be a U.S. employer serving as the petitioner. The U.S. employer may take the form of any business organization, such as an incorporated
corporation, an LLC, a general partnership, a limited liability partnership, a partnership, a joint venture, or any other type of business entity.
An individual may not serve as the petitioning "U.S. entity," but a U.S. business organization owned and controlled by the same individual that also owns and controls the foreign entity qualifies as a petitioning U.S. entity. The U.S. company may be the parent, subsidiary, branch or affiliate of the foreign company. In most cases, the foreign company is the parent company of the U.S. company, and the U.S. company is the subsidiary company of the foreign company. The alien beneficiary of an
EB-1C immigrant petition must be employed in the U.S. company in an executive or managerial capacity. The U.S. company must have been in existence and doing business for at least one year before the
EB-1C petition is submitted, and must actively engage in business operations and be financially viable to support the petition.
In order for an alien to be classified as an
EB1 Multinational Executive or Manager, there must be a foreign employer. The foreign employer may take the form of any business organization, such as a company limited by shares, a limited liability company, a partnership, a joint venture, or any other type of business entity. A foreign individual
may not serve as the "foreign entity," but a business organization solely owned and controlled by such foreign individual qualifies as a foreign entity. The company abroad may be the parent, subsidiary, branch or affiliate of the U.S. company. The alien beneficiary of an
EB-1C immigrant petition must have been employed in the foreign company in a managerial or executive capacity for no less than one year in the three years immediately preceding the date the petition is
submitted.
3.
The Multinational Relationships and Qualifying Organization
The EB-1C classification depends upon the U.S. operations to which the foreign employee will be
assigned. Under USCIS rules, the following relationships are considered
qualifying:
1) The U.S. company is the parent or subsidiary of the foreign
company;
2) The U.S. and the foreign companies are affiliates.
3) The U.S. operation is a branch office of the foreign company, or vice versa.
Proving the existence of a qualifying organization is one of the important aspects of a successful
EB-1C petition.
4. The Corporate
Relationship between the Foreign Employer and the U.S. Employer
The corporate relationship between the foreign employer and the U.S. employer must be a qualifying one. The immigration regulations provide the following
definitions:
1) Parent/Subsidiary: The
parent/subsidiary relationship between the company abroad and the U.S. company can be either way. Any of the following situations will establish a
parent/subsidiary relationship:
1)
one company owns more than 50% of the other, and controls the other company. It is not uncommon for one company to own and control 100% of the other (the so-called "wholly-owned subsidiary").
2. one company owns 50% of the other, and controls the other company;
3)
one company owns 50% of a 50/50 joint venture and has equal control and veto power; or
4)
one company owns less than 50% of the other, but in fact controls it.
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:
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.
3) Branch Office:
A "branch" is an operating division or office of the same organization housed in a different location. While the branch office or division may be distinctly organized or incorporated in the U.S. or the foreign country, it is necessarily 100% funded, controlled by, and forms an integral part
of the company to which it
belongs. Therefore, the U.S. company may be a branch company of the foreign company, or the foreign company may be a branch company of the U.S. company.
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