1. The Qualifying Position for EB1 Multinational Executive or Manager Petition

An important requirement for EB-1C immigrant petition is that the intra-company transferee not only must have been an executive or manager in the foreign entity for at least one year within the preceding three years, but also must be positioned in the U.S. entity in a similar capacity. The EB-1C classification is a permanent immigrant status, thereby enabling the alien worker to work in the United States permanently. Concrete evidence is required in support of the beneficiary's duties are primarily executive or managerial in nature. 

When establishing the duties of a multinational executive or manager, it is advisable to provide a breakdown of the percentage of time that the alien spends or is expected to spend on each task, in order to present a clear indication that the alien is working or will work primarily in an executive or managerial capacity. An alien worker is not considered to be acting primarily in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised.

2. The Executive or Managerial Positions

The alien beneficiary must have been employed outside the U.S. for a related company for at least one year in the three years immediately preceding the transfer in a managerial or executive position, and that the employee must be coming to the U.S. company to perform work in a managerial or executive capacity. 

An individual is not considered to be acting as a manager or executive merely on the basis of the number of employees that he or she supervises, directly or indirectly. The USCIS considers the reasonable needs of the organization, the overall purpose of the company and function, and the company's stage of development in determining whether a position qualifies. First-line supervisors generally are not considered managers or executives, without other evidence of their qualifications.

An executive or managerial title alone is insufficient if the beneficiary does not in fact perform duties which are primarily executive or managerial in nature. An alien's duties can be viewed in light of the size of the organization and the number of employees. The smaller the organization, the greater the scrutiny directed at whether primarily executive or managerial positions can exist. 

To be an executive, you must direct the management of the organization or a major part or function of it; you need to establish the goals and policies of the organization, and receive only general supervision from executives on a higher level, from the board of directors or stockholders of the organization. 

As a manager, you must manage the organization or other part of the organization, supervise and control the work of other professional employees, and have the authority to hire and fire. 

3. The "Managerial Capacity" for a Multinational Manager 

"Managerial capacity" for a multinational manager means an assignment in an organization in which the employee primarily manages the organization or a department, subdivision, function, or component. To be classified as a "multinational manager" for EB-1C immigration purposes, the intra-company transferee must:

1) manages the organization, or a department, subdivision, function, or component of the organization;

2) 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 of the organization; 

3) 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 function managed; and 

4) 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 the supervisor's supervisory duties unless the employees supervised are professional. 

Staffing levels are a factor in determining whether a beneficiary is acting in a managerial capacity. However, an individual is not considered to be in a managerial capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed. Managerial capacity is determined by examining the totality of an employee's specific tasks and responsibilities. 

4. The "Executive Capacity" for a Multinational Executive

Executive capacity of a multinational executive means an assignment within an organization in which the employee primarily:

1) directs the management of the organization or a major component or function of the organization; 

2) establishes the goals and policies of the organization, component, or function; 

3) exercises wide latitude in discretionary decision-making; and 

4) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Staffing levels, proportionate to the reasonable needs and development of the entity, are a factor in determining whether a beneficiary is acting in an executive capacity. However, an individual shall not be considered to be acting in an executive capacity merely on the basis of the number of employees that the individual supervises or has supervised, or directs or has directed.

5. Other Important Issues for Executive and Managerial Capacity

The EB1 Multinational Executives and Managers immigration category clearly creates opportunities for certain executives and managers of multinational companies to establish permanent residence in the United States. 

Even executives and managers of companies without existing subsidiaries in the U.S. may be able to take advantage of this category, by first establishing U.S. subsidiaries under L-1A status and then applying for the EB1C status once their subsidiary has been in business for the required one year period.

The definitions of managerial capacity and executive capacity include management of a function, and the beneficiary needs not to directly manage other personnel. If staffing levels are used as a factor, the reasonable needs of the organization, component or function, in light of the overall purpose and stage of development thereof, must be taken into account.

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