EB-1C Petitions: Green Card for Multinational Executives or Managers

Overview

An EB-1C petition refers to an employment-based petition under the 1st preference immigrant classification for multinational managers and executives. An immigrant visa is available to an alien, who has been employed outside the United States for at least 1 year in the 3 years preceding the immigration petition in a managerial or executive capacity and seeks to enter the United States to continue to render managerial or executive services to the same employer or its subsidiary or affiliate.  If the alien beneficiary is already in the United States working for the same employer or its subsidiary or affiliate by which he or she was employed overseas, the beneficiary must establish that he or she was employed abroad in a managerial or executive capacity for at least 1 year in the 3 years preceding the most recent lawful nonimmigrant admission.  

An EB-1C petition has the below two major advantages:  

First, no labor certification is required for an immigration petition for multinational executives or managers. However, a permanent job in a managerial or executive capacity from a prospective U.S. employer is required. The employer must indicate in its job offer statement that the alien is to be permanently employed in the United States in a managerial or executive capacity with clear descriptions of the duties to be performed.

Second, unlike an EB-5 green card, there is no “conditional resident” status subject to a subsequent review of the business for the beneficiary to remove the conditions and become a permanent resident. In other words, a permanent residency instead of a conditional residency is granted once the beneficiary's immigration petition is approved. 

When filing the petition, the petitioning United States employer must provide a statement demonstrating that (1) the beneficiary has been employed abroad in a managerial or executive capacity for at least 1 year in the 3 years preceding the filing of the petition, (2) the beneficiary is coming to work in the United States as a manager or executive for the same employer or a subsidiary or affiliate of the foreign employer, and (3) the petitioner, as the prospective U.S. employer, has been doing business for at least one year.  In addition, the petitioner must demonstrate that it can pay the beneficiary’s salary.

Beneficiary's Foreign Employment

A petition for a multinational manager or executive must be evidenced by the beneficiary's employment outside the United States in a managerial or executive capacity by a qualifying entity within the same multinational organization for at least one year in the three years preceding the filing of the petition. The term "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. 

Relevant evidentiary documents may include, but are not limited to, the following:

• The beneficiary's overseas employment contract with the petitioning United States employer, its affiliate, or subsidiary in a foreign country
• The beneficiary's resume indicating his or her employment with the qualifying entity abroad 
• The beneficiary's receipts of wages, personnel records, bank statements, or tax documentation

U.S. Employment in a Managerial or Executive Capacity

The petitioning U.S. employer must establish that the beneficiary will be employed in the United States in a managerial or executive capacity. 

• Managerial Capacity

Managerial capacity includes both "personnel managers" and "function managers."

• • Personnel managers

As a personnel manager, the beneficiary primarily:

• • • Manages the organization, department, subdivision, function, or component of the organization;
    • Supervises and controls the work of other supervisory, professional, or managerial employees;
    • Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and
    • 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 (whose positions require at least a baccalaureate degree).

Further, if staffing levels are used as a factor in determining whether the beneficiary is functioning in a managerial or executive capacity, the number of employees the beneficiary is supervising is not determinative but the beneficiary’s role and function within the organization is.

• • Function Managers

As a functional manager, the 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.

A manager may qualify for a multinational manager or executive classification as a function manager if the petitioning U.S. employer can show, among other things, that the beneficiary has and will be primarily managing or directing the management of a function of the employer, even if the beneficiary did not or will not directly supervise any employees.

The beneficiary's primary duties are:

• • • 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.

The petitioner must clearly demonstrate, however, that the essential function being managed is not also being directly performed by the beneficiary.  In addition, the petitioner must establish that the beneficiary will occupy a senior position in the petitioner’s organizational hierarchy or within the function managed and that the beneficiary will have discretionary authority over the day-to-day operations of that function.

USCIS considers all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization, that contribute to understanding the beneficiary’s actual duties and role in the business.  Moreover, the beneficiary's authority to commit the company to a course of action or expenditure of funds is also considered.

Function managers perform at a senior level in the organization and may or may not have direct supervision of other employees.

• Executive Capacity

"Executive capacity" focuses on a person's position within an organization. But the nature and structure of the organization itself are taken into account.

The executive beneficiary primarily:

• • • Directs the management of the organization or a major component or function of the organization;
    • Establishes the goals and policies of the organization, component, or function;
    • Exercises wide latitude in discretionary decision-making; and
    • Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Neither the beneficiary's executive title nor some portion of the beneficiary's time spent directing the enterprise as the owner or sole managerial employee demines executive capacity. The focus is on the primary duties of the beneficiary.  Therefore, there must be sufficient staff (for example, contract employees or others) to perform the day-to-day operations of the petitioning U.S. employer in order to enable the beneficiary to be primarily employed in the executive function.

• How USCIS Reviews Managerial or Executive Capacity

In evaluating an executive or managerial capacity, USCIS considers the totality of the evidence provided, including the following:  the nature and scope of the petitioning U.S. employer’s business and organizational structure; staffing levels; the beneficiary’s resume; the beneficiary’s position and scope of authority; the work performed by other employees and whether it relieves the beneficiary from performing operational and administrative duties; and the reasonable needs of the organization as a whole. 

The petitioner must establish that the U.S. entity itself is in fact conducting business at a level that would require the services of a person primarily engaged in executive (or managerial) functions due to the nature of the business, including its size, its organizational structure, and the product or service it provides.

The petitioner's descriptions of the beneficiary's job duties must be specific in the following respects: any subordinate employees, the nature of the petitioner's business, the employment and remuneration of other employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in the business. If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary's job duties must demonstrate what proportion of the beneficiary's duties is managerial in nature, and what proportion is non-managerial. A beneficiary who primarily performs non-managerial or non-executive duties does not qualify as a manager or executive. 

If staffing levels are used to determine whether a beneficiary's job capacity is primarily executive or managerial in nature, the reasonable business needs of the enterprise based on its overall purpose and stage of development are considered. 

A single-person office is not precluded from having that sole employee be classified as a multinational manager or executive, provided the requisite corporate affiliation exists and all other requirements are met. However, it may be very difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial or executive function.

While a sole employee will have some managerial or executive duties, simply to keep the business running, he or she will normally be spending the majority of his or her work time doing the day-to-day work of the business, that is, performing the type of duties that persons who would normally be employed in the business in question would perform.

Doing Business

The petitioning United States employer is required to furnish evidence showing that it has been doing business for at least one year at the time of the filing of the petition. Since the petition is for a multinational executive or manager, the employer must further show that the overseas entity employing the beneficiary abroad continues to do business as well. The mere existence of a qualifying entity does not amount to doing business. It must have been engaged in providing goods and services continuously. Business activities may be documented by photographs of the physical premises of the entities, annual reports, payroll records, audited financial statements, tax filings (such as tax returns) submitted to authorities, lease agreements, sales and purchase contracts, bank statements, invoices, and other probative evidence.  

Thorough Preparation of the Immigration Petition

When filing an immigration petition for a multinational manager or executive, try to provide relevant, probative and credible evidence with supporting documentation and make sure there are no inconsistencies in the evidence. Always check pertinent information about the qualifying organizations and the beneficiary (such as his or her LinkedIn profile) on the Internet before the filing; take reasonable steps as necessary to resolve discrepancies between the evidence provided and the open information, especially any negative information, from websites.  

Note that a reviewing officer may refer to adverse evidence from open sources in the World Wide Web, provided that such evidence is made part of the record and the petitioner is notified of the evidence and allowed an opportunity to rebut. 

In sum, complete and professional preparation of an EB-1C petition is much better than a subsequent possible receipt of a request for evidence (RFE) or a notice of intent to deny (NOID), and even an appeal, a common option to an adverse decision on the petition, which is time-consuming and costly with no guarantee for success.

DISCLAIMER:

This blog does not, and is not intended to, constitute legal advice; instead, it is for general informational purposes only.  The information presented in this blog may not reflect the most up-to-date legal developments and is subject to change at any point in time.   The information presented in this blog does not create an attorney-client relationship.  Readers of this blog should contact their attorney to obtain advice regarding any particular legal matter.  No readers should act or refrain from acting based on the information presented in this blog without first seeking legal advice from counsel in the relevant jurisdiction.  No representations are made that this blog is error-free.  Altaffer & Chen PLLC expressly disclaims all liabilities arising from any actions taken or refrained from based on the information presented in this blog.

11/11/2022