Q: What is EB-1 immigrant visa petition?  

A: The EB-1 is the Employment-Based First Preference Immigration. An EB-1 petition consists of Form I-140 and supporting documents to show that the beneficiary meets the EB-1 criteria. The burden of proof in EB-1 cases rests solely with the petitioner and the alien applicant. The First Preference Immigration Petition is an employment-based petition for Permanent Residence in the United States for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports. There are three (3) types of EB-1 petitions:

• EB-1A: Alien of Extraordinary Ability;
• EB-1B: Outstanding Researcher or Outstanding Professor;
• EB-1C: Multinational Executive or Manager.

The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement. Obtaining a Labor Certification is a time-consuming and expensive process that seeks to determine whether a qualified U.S. worker is available to fill the position sought by the petitioning alien. In addition to the time and expense of the Labor Certification process, an alien risks being denied a Labor Certification if a U.S. worker with technical qualifications for the employment is found, even if the alien is actually more suitable for the position based on factors not considered in the Labor Certification process. 

In an EB-1 petition, the Labor Certification is not required at all. In EB-1A petition, a permanent job offer is not required, and an alien may petition immigration by himself or herself. However, in EB-1B and EB-1C petitions, a permanent job offer is required. In other words, a U.S. employer must be the petitioner in EB-1B or EB-1C petition. 

Q: What is the qualifying relationship between the U.S. employer and the organization abroad?

A: EB-1C is one of the several categories established by the U.S. Congress for obtaining immigrant status, i.e., for attaining U.S. lawful Permanent Residence. Immigrants refer to foreign individuals coming to the United States permanently. They are more officially known as “Lawful Permanent Residents.” These terms are used interchangeably. The categories for employment-based immigrants are defined in the Immigration and Nationality Act. What is become known as EB-1C immigrants refer to the category of aliens who are eligible for permanent residence as intra-company transferees and continuing to work in the United States in a managerial or executive capacity.

When an employer wishes to transfer an alien employee working abroad to a U.S. company as an EB1 Multinational Executive or Manager 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. To establish a "qualifying relationship" under the regulations, the petitioner must show that the beneficiary's foreign employer and the U.S. employer are the same employer (i.e., a U.S. entity with a foreign office), or related as a "parent/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 U.S. company and foreign entity for purposes of this visa classification. 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. In addition, the petitioner must demonstrate that the U.S. organization has the ability to pay the beneficiary’s salary.

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.

Q: What is the definition of "multinational"? 

A: The 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. Employment experience in a U.S. company alone does not count. The alien beneficiary must have been employed abroad by a "multinational" entity. 

Q: Who can file a petition on Form I-140 for an alien as a multinational executive or manager?

A: A United States employer may file a petition on Form I-140 for classification of an alien as a multinational executive or manager. No Labor Certification is required for this classification. The prospective employer in the United States must furnish a job offer in the form of a statement that indicates that the alien is employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties performed by the alien.

The petitioner must be either the same company that employed the alien outside the United States, or an affiliate or subsidiary of that company. The petitioner must be a U.S. employer, and it must have done business in the United States for at least one year. Multinational executives and managers require a petitioning employer, but they do not require a Labor Certification. 

Q: What are the general requirements for EB-1C immigrant visa classification?

A: The requirements for EB1 Multinational Executive or Manager immigrant classification are similar to those for L-1A nonimmigrant classification, but are more rigorous both in the law and in its enforcement. The EB-1C classification is similarly for individuals who have been employed abroad for one year in a qualifying capacity and who are coming to perform qualifying work for a related company in the United States. 

Generally, an alien beneficiary for EB-1C classification must have been employed abroad by a foreign employer in a managerial or executive capacity for one continuous year of the previous three years; who is being transferred permanently to the U.S. to be employed by a parent, branch, affiliate or subsidiary of that foreign employer in a similar managerial or executive capacity. The Labor certification is not required but a job offer is required. 

Q: What are detail requirements for multinational executives or managers?

A: 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. 

A EB-1C petition for a multinational executive or manager must be accompanied with a statement from an authorized official of the petitioning U.S. company which establishes that:

1) if the alien is outside the United States, for at least one out of the three years immediately preceding the filing of the petition, the alien has been employed with an organization outside the United States in a managerial or executive capacity; or 

2) if the alien is in the United States working for the petitioning employer, in the three years preceding transfer to the U.S. as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity; 

3) the employer in the United States is the same employer, a parent, a subsidiary, or an affiliate of the organization for which the alien worked overseas in a managerial or executive capacity; and 

4) the U.S. employer has been doing business for at least one year.

Q: What is the Managerial Capacity?

A: Since the position held by the EB1C Green Card applicant both in and out of the U.S. are required to be executive or managerial in nature, the exact meaning of these terms is important. Managerial capacity has been defined to mean an assignment with an organization in which the employee personally:

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, function at a senior level respect to the function managed; and

4) Exercises discretion over day-to-day operations of the activity or function for which the employee has authority. A first-line supervisors are not considered to be acting in the managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professionals.

Q: What is the "Executive Capacity"?

A: The Executive Capacity means an assignment in 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 goals and policies of the organization, component, or function;

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

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

Q: What is the definition of "function manager"? 

A: The term “functional” or “function manager” applies generally when a beneficiary does not supervise or control the work of a subordinate staff, but instead is primarily responsible for managing an "essential function" within the organization. The definition of the term “manager” includes functional managers. A manager may qualify for EB1C classification as a functional manager if the petitioner can show, among other things, that the beneficiary will be primarily managing or directing the management of a function of an organization, even if the beneficiary does not directly supervise any employees.

For “function managers,” the 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.

Q: What are the other important issues of executive and managerial capacities?

A: The USCIS frequently focuses on the number and level of subordinate employees when evaluating if a position is managerial. If there are few or no subordinates, then EB1C petitions are routinely denied, even if the prospective immigrant is the highest level employee and responsible for an essential function. Further, the subordinates must themselves be managers, supervisors, or professionals.

Q: Who are the professionals

A: The word "professional" here means a worker holding a university degree. The USCIS considers professionals to be individuals with at least a baccalaureate degree who are performing jobs which require that education. Non-employee subordinates are also discounted by the USCIS, so that the direction of independent contractors or commission based staff carries little or no weight. First-line supervisors are not considered acting in a managerial capacity, unless the employees who are supervised are themselves considered professional.

Q: What is the "First-line Supervisor"?

A: A supervisor below the level of middle management is often called a first-line supervisor. First-line supervisors are not normally considered managers for Green Card qualifying purpose unless the employees they supervise are professionals. 

Q: Do I have to work for the foreign company before to qualify as a multinational executive or manager?

A: The language of the statute is specific in limiting to only those executives and manages who have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary.

Q: What is the meaning of "affiliate"?

A: There are three types of qualifying affiliate relationships:

1) One of two subsidiaries, both of which are owned and controlled by the same parent or individual;

2) 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 

3) A partnership (or similar organization) that is organized outside the United States to provide services to the U.S. partnership. 

Q: What is the meaning of "subsidiary"?

A: 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 that entity; or owns, directly or indirectly, 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.

Q: Can a foreign corporation's branch office file an EB1 Multinational Executive or Manager I-140 petition?

A: While the L-1 nonimmigrant visa regulations allow for a “branch office” to petition for a manager or executive, the EB1 Multinational Executive or Manager 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. 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: As a Limited Liability Corporation (LLC), can we file EB1C I-140 petition for a manager?

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 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. Generally, when an LLC has only one member, the IRS will disregard or ignore the fact that it is an LLC for the purpose of filing a federal tax return. Note though that 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 a separate entity.

Q: What is the "doing business" requirement for an EB1C petitioner? 

A: Doing business” means the regular, systematic, and continuous provision of goods 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:

1) Foreign employer must continue to do business: Both the U.S. employer and at least one qualifying organization abroad must be doing business up until the time of immigrant 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 EB-1C purposes. If the beneficiary’s overseas employer’s foreign operations cease entirely prior to the time of visa issuance or adjustment of status, the beneficiary will no longer be eligible for EB1C immigrant visa classification.

2) U.S. employer must have been doing business for at least one year: 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. 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 are the applicable rules for family members?

A: If the applicant qualifies for the EB1C Green Card, his or her spouse and children under 21 will automatically qualify as well. Prior to issuing a Green Card, the U.S. government will perform a background check on the applicant and his or her family member. This background check is called either adjustment of status or consular processing, depending on whether it is performed in the U.S. or abroad.

Q: How to provide evidence to prove the employer's “ability to pay”?

A: The U.S. Employer must prove that it has the “ability to pay” the applicant at the time the Green Card application is filed AND at the time the application is approved.

The U.S. employer must provide its tax return at the time the Green Card application is filed. It may also have to provide its tax return later, while the application is being processed. The tax return must show that EITHER the U.S. employer’s net income (profit) OR net assets are greater than the salary offered to the applicant. In the alternative, the U.S. employer can provide evidence that the applicant is already on its payroll and already receives the wage offered in the Green Card application.

Q: I want to file Multinational Executive or Manager Green Card application. How could your package of "Complete Do-It-Yourself Package for EB1 Multinational Executive or Manager (EB-1C) Petition" help me?

A: To help you obtain U.S. Green Card quickly, we provide the high quality and case-proven "Complete Do-It-Yourself Package for EB1 Multinational Executive or Manager (EB-1C) Petition", based on our extensive and practical employment immigration experience.

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Q: My company lawyer filed my Green Card application in EB1 Multinational Executive or Manager Category. Now we got a Request For Evidence (RFE) notice from USCIS Service Center for the tough questions such as "executive/manager capacity" and my "daily management duties." Could I get help from you for my RFE Response?

A: If you get a Request For Evidence (RFE) notice for your EB1 Multinational Executive or Manager Green Card petition from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your EB1C Green Card petition rejection.   

To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence (RFE) for EB1 Multinational Executives or Managers (EB1C)" In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB1 Multinational Executive or Manager Green Card petition, and eventually get your Green Card approval.

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