Q: What is EB-1? and who has the burden of proof in an EB-1 petition? 

A: 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 EB-1 criteria. The burden of proof in EB-1 cases rests solely with the petitioner and the alien applicant. 

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 to be employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties to be 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 is basic 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. 

Q: Who qualifies for multinational executive or manager?

A: An alien is described in this category if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this category, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary, and who seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or a affiliate thereof in a capacity that is managerial or executive.

Q: What is the Managerial Capacity?

A: Since the position held by the 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 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 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: What is the requirement for the employer to file the  EB1 Multinational Executives or Managers Green Card petition?

A: The petitioner must demonstrate that the:

1) U.S. organization and the organization abroad maintain a qualifying relationship;

2) U.S. organization and the organization abroad are both actively engaged in doing business; and

3) U.S. organization has been actively engaged in doing business for at least one year.

In addition, the petitioner must demonstrate that the U.S. organization has the ability to pay the beneficiary’s salary. USCIS regulations 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.

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: The affiliate means:

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

2) 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.

Q: What is the meaning 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.

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: I will accept a job offer to work in U.S. as a Vice President in Engineering at a company, do I need a Labor Certification to get U.S. Green Card? or can I apply for EB-1C multinational corporate executive or manager Green Card? 

A: According to the current U.S. immigration law, the EB-1C multinational corporate executive does not need a Labor Certification, and you will be able to get a Green Card in a fairly short period of time by filing the Form I-140 and I-485. As a Vice President in Engineering, you can apply for L-1A visa to enter the U.S. Once you enter on a L-1A visa, you will be able to file EB-1C immigrant petition thereafter. 

Q: I am currently on L-1A visa status and on my 7th year of stay in USA. I heard that L-1A does no need Labor Certification, and is eligible to apply for I-140 Green Card application as multinational executive, if the visa dates are available. It this true?

A: It is true that the corporate executive or manager of the multinational corporations does not need a Labor Certification for their Green Card application, if they meet certain conditions, and the visa classification is L-1A. 

There are two types of people who are currently in L-1A visa status in the U.S. One is those who were granted a L-1A status from the beginning, because of their executive or managerial experience at least for one year with the foreign parent or subsidiary or affiliate company. These L-1A holders can apply for I-140 Green Card application in the EB-1C category, without a Labor Certification.

The second group is those who did not meet the L-1A visa requirement at the time they first came to the U.S. but because of the promotion to an executive or a managerial position for six or months in the U.S. parent or subsidiary or affiliate company, they were allowed to change status to L-1A. But these L-1A holders can not apply for I-140 Green Card application in the EB-1C category, and may need to apply for the Labor Certification first.

Q: Three years ago, I was transferred from Hong Kong to the parent company in Chicago to oversee the U.S. parent company's financial activities in Asia. My job title is a Financial Manager for Asian Operations and my visa status is L-1A Multinational Corporate Manager. Very soon, the company in Hong Kong and my employer in the U.S. will no loner be in parent-subsidiary relationship. What will happen for my L-1A nonimmigrant status and my pending EB-13 (EB-1C) application?

A: For you to maintain the L-1A nonimmigrant status, the two companies in China and the U.S. must keep either a parent-subsidiary or a branch or an affiliate relationship. Once such relationship is broken, you lose your L-visa status.

Since your I-140 was filed for EB-13 Multinational Corporate Manager based on such relationship, once such relationship is broken, your U.S. employer is no longer eligible for the pending I-140 petition, and your I-140 along with your I-485 may be denied. 

Q: I worked with a German subsidiary of the American fortune 500 company as a Engineering Manager in Germany about 2 years ago. Now, I was approached by this employer with a job offer of Engineering Manager in U.S. Can I apply for U.S. Green Card in EB-1C multinational manager even if I have not been working for the American company last year?

A: The EB-1C petition requires that the alien beneficiary should have worked for the foreign subsidiary at least for one year, and you have not been working for this company more than one year by now. But there is more to the one-year employment requirement. 

If you worked with the American company in Germany for more than one year during the last three years, even if you have not been working for the American company until now, you will have such EB-1C immigration application opportunity, if you are rehired now and transferred to the U.S. parent company.

Q: My last L-1A status extension was approved about two months ago. Since the EB-2 priority dates for my country of origin are now sitting back more than 2 years. If I apply for EB-1 manager immigration through my current company and file an I-140 application in EB1C category, what is my priority date?

A: The L-1As can stay in the U.S. for a maximum period of seven years. The L-1A executives and managers can apply for Green Cards without going through the Labor Certification applications. The priority date is fixed at the time of filing of form I-140 petition, and not at the time of filing of L-1A petition or visa extension filing date. 

In all the Labor Certification waiver cases including EB1C executive/manager or National Interest Waiver petition, the priority date is determined by the date of filing of the immigrant petition (Form I-140), since these are the cases that do not need a Labor Certification application. In your case, your priority date is the date that your employer filed EB1C petition has been received by an USCIS Service Center.

Q: I came to the U.S. from China to work for its parent company in San Francisco with L-1A visa. My employer in China is a subsidiary of the current employer in San Francisco. I then filed EB-1C of I-140 and I-485 as a multinational corporate manager which is currently pending. My I-140 has yet to be adjudicated. Can I change job to another employer in New York City?

A: To change job, your current job in San Francisco and the new job in New York City should be in a similar occupational classification. Under the current USCIS AC-21 policy, you are permitted to take a new employment with an unrelated company in the U.S. even though the I-140 you filed required the relationship between a foreign company in China and your current employer in the U.S., if the two jobs belong to a same or similar occupational classification. 

However, there are a few things you should follow through such that your pending I-140/I-485 is not affected by your porting to a new employer. Most importantly, since your I-140 is still pending, you should be assured that at the time of filing of the I-140 petition and you job changing, you were eligible for the multinational corporate manager petition, including your manager record for one year or longer in China and your manager position in San Francisco, and the corporate relationship of either parent-child or brother-sister between the company in China and the U.S. The USCIS will adjudicate this issue when your visa number becomes available and they adjudicate your I-485. If there was a flaw in the petition, they will deny such I-140 petition and simultaneously deny your I-485 application. 

Also, your new employer in New York city will not be able to file another L-1A nonimmigrant petition for you since you are not eligible for such nonimmigrant status. Thus, unless you have a valid EAD, you will not be able to work for the new employer. You should never start working for the new employer until you get an EAD. 

Q: I am a Japanese citizen currently working with a American company subsidiary in Japan. Next year, I will be transferred to U.S. in New York city as a technology director, I understand that both EB-2 and EB-3 may be oversubscribed not only for the Indians and Chinese, but also for other nationalities. What options do I have to apply for US Green Card? 

A: You should enter the U.S. with L-1A visa to be qualified for the Labor Certification exempt EB-1C petition later. The U.S. parent company in New York city should file L-1A visa petition for you. Once you enter on a L-1A status, you will be able to file EB-1C immigrant petition. Unlike EB-2 or EB-3 immigrant category, there is practically no chance that EB-1 immigrant category for the Japanese will be oversubscribed in the future. 

Q: I had worked for a foreign company initially as a manager in only half year, before I was transferred to U.S. I have been working in U.S. in L-1B status which has a five-year limit. By next year March, my L-1B will reach the five-year limit. I cannot change to H-1B now because of the H-1B annual cap. Since I am in a management position now, can I change to L-1A visa in U.S.? then file an EB-1C immigration petition for my Green Card?

A: At the time you came to U.S., you were not eligible for L-1A visa which is granted only if the alien worked for a foreign parent company at least more than one year prior to your transfer, in the capacity of a manager or an executive. Therefore, you were eligible only for L-1B visa at that time. 

The maximum allowed stay in U.S. on L-1A status is 7 years, while the same for L-1B status is only 5 years. When it comes to the immigrant application of EB-1C, you are still not eligible for such EB-1C immigration petition, as you failed to meet one-year managerial work experience requirement at the foreign parent company before you enter the U.S. 

Q: My current U.S. employer is about to sell its operations in Taiwan. If it happens, I am extremely concerned because it can jeopardize the EB-1C petition which needs a proof that the two companies are related. I will reach 180 days of I-140/I-485 filing in a matter of a few days. Can I change to another company in another city that is willing to offer me a financial manager position for its overseas operation in Europe?

A: Once you pass 180 days of I-485 filing, you will be able to take this job without jeopardizing your pending I-140/I-485. It is true that the job is located in a different city, the employers may do complete different line of businesses, or the involved international operations also different. From the perspectives of AC-21 rules, location or line of business of employers are all not relevant. 

All that matters is whether two jobs belong to a "same or similar occupational classification." The USCIS determines the same or similar occupations based on the Labor Department's Dictionary of Occupational Titles (DOC) or SOC/OES Codes which employers use to file a Labor Certification application. 

Q: When I was transferred to its U.S. subsidiary company in Michigan, my job was a Software Engineer. I worked in that status for four years, and promoted to a IT manager position seven months ago. Since L-1B maximum is five years, I am approaching the five-year limit for L-1B. My question is: can I change my visa to L-1A, and do you think I am eligible for the EB-1C immigrant category of multinational corporate manager?

A: You can change your status to L-1A now, but you are still not eligible for the EB-1C immigrant category of multinational corporate manager, which does not require a Labor Certification. You are ineligible because the law requires that you should have worked at a manager position in the foreign parent company at least for one year. 

When you first came to the U.S., your employer could not file a L-1A visa petition because you were not qualified at the time as a manager . That is why your company brought you over here in L-1B status rather than L-1A status. 

Q: I am in L-1B status currently, close to the 5-year limit in L-1B status. About seven months ago, I was promoted to a manager of a technical department in the U.S. subsidiary of my current employer. Can I file EB-1C multi-national corporate manager or executive petition now to avoid the current visa retrogression problem in EB2 and EB3?

A: Under the L-1A rule, once you have worked in a managerial capacity in the U.S. subsidiary for six months or longer, you are eligible for the L-1A visa status, which will give you at least two more years, compared with the 5-year limit in L-1B status. Your employer may file a L-1A petition on your behalf to change your status from L-1B to L-1A, and extend your nonimmigrant status. 

However, do not be confused with your eligibility for EB-1C immigrant petition after attaining L-1A status in the U.S. You will still be ineligible for the EB-1C immigrant petition, because of your work experience with your parent company in your country was not in a managerial capacity for at least one year. 

Q: In Italy, I was in charge of management of the company's financial activities, and my job title was Financial Controller. Now, I am working for the US parent company which is in garment industry. What happens if my current employer's sale of its Italy operation is completed and they lay me off in the US? Will taking a job offer from another company using EAD (work permit) will save my pending I-140/I-485 in EB-1C category? 

A: Since your I-140 has yet to be decided, you should be aware that if you work on EAD without any nonimmigrant status and your I-140/I-485 is denied, you cannot stay in the U.S. In this regard, keeping a nonimmigrant status rather than using EAD may be very important for those who change job while I-140 application is still pending. 

You may talk to your new employer to see whether they are willing to file a H-1B petition for you. If you earned a master's degree in any fields in the U.S., you can file your H-1B petition regardless of the H-1B cap.

Q: My L-1A visa will reach the 7th-year limit, and the EB-1/EB-2 visa numbers retrogressed for my country. Can I recapture the L visa time for my one year working outside USA? so I may still have time to file EB-1 Green Card application?

A: If you are close to reaching the end of your 7th year, you should work with your employer to ask USCIS to recapture your time working outside the U.S. - to apply for extension of your L-1A time recapturing  your time abroad.

Also, your employer should immediately file I-140 alone to fix the priority date. When the EB-1 visa number becomes available, you should quickly file I-485 along with EAD and AP applications. You should watch closely the EB-1 visa number progression in the Visa Bulletins.

Q: I am an Engineer Manager from India working at the client site of a fortune 500 company at a manager level but in L-1B status. Before I came to the U.S., I worked for the Indian company for four years and was in charge of a design department for four months. Can I extend my L-1B in three-year increment using the AC-21 rule after filing the I-140 application, or can I change to H-1B status?

A: The AC-21 extension of nonimmigrant status in three-year increment during the period of visa retrogression applies to H-1B professionals who obtained I-140 petition approval. However, this provision does not apply to other nonimmigrant classifications, such as L-1A or L-1B. 

For the purpose of the change or extension of L-visa or H-visa status, these two visa classifications are considered in a same nonimmigrant status in counting the six-year limit to H-1B. currently a H-1B visa number is not available for you since you did not earn a Master's degree in the U.S., or you had a H-1B visa status one time during the past six years. 

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