EB1 (C) Visas: Frequently Asked Questions
Q, Who can qualify as a Manager or Executive?
A: EB1-C is one of the groups in the first preference category of employment-based immigration, for multinational executives or managers who have been employed abroad in the same corporation. This group makes use the most visas from the annual allotment. In order to qualify as a multinational executive or manager under this preference, the applicant, during the three years preceding the application, must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent,subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the applicant must seek to continue rendering services to the same employer in a managerial or executive capacity.
To be qualified as a multinational executive or manager under this preference, the foreign beneficiary, during the three years preceding the application, must have been employed for at least one year by the same multinational firm or other business entity (affiliate, parent, subsidiary, or branch of the U.S. employer) that employs them in the United States. Furthermore, the foreign beneficiary must seek to continue rendering services to the same employer in a managerial or executive capacity.
Q3, Who can file an EB1-C petition?
A: Under the USCIS rules, the U.S. employer has to file the petition for the manager or executive transferee. The petition must be accompanied by a statement from the U.S. employer affirming all of the pertinent requirements, including a description of the job duties to be performed by the foreign beneficiary in the United States, the job duties performed by the foreign beneficiary abroad, and the periods of employment by the foreign beneficiary abroad.
Q, Do I need a Labour Certificate?
A: No labour certification is required before the I-140 filing for all groups of EB-1.
Q, Do I require a job offer?
A: Yes. A job offer is required for the EB1-C petition.
Q, What are the advantages of the EB1-c visa?
A: 1. No labour certification is required.
2. All visas are current so it much faster to obtain a Green Card in this category than others.
Q, What evidence is required?
A: A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:
1. If the foreign beneficiary is outside the United States, in the three years immediately preceding the filing of the petition the foreign beneficiary has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; OR
2. If the foreign beneficiary is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the foreign beneficiary was employed overseas, in the three years preceding entry as a nonimmigrant, the foreign beneficiary was employed by the entity abroad for at least one year in a managerial or executive capacity;
3. The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the foreign beneficiary was employed overseas; and
4. The prospective United States employer has been doing business for at least one year.
Q, Can I provide supporting evidence?
A: The following evidence is appropriate to submit to prove managerial or executive capacity:
1. Description of the foreign beneficiary’s supervisory capacity: A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional. What is a “first-line“ supervisor is a matter of business organization to be proven in each case. Therefore, the petitioner should submit evidence of the business organization and description of the alien beneficiary’s supervisory capacity. However, if the management hires employees with bachelor degrees or higher than a first-line supervisor can be considering acting in a managerial capacity.
2. Description of staffing levels and development of the company: If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the reasonable needs of the organization, component, or function, in light of the overall purpose and stage of development of the organization, component, or function, should be taken into account. An individual will not be considered to be acting in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or as directed.
3. Documentation of a job offer: No labour certification is required for this classification; however, the prospective employer in the United States must furnish a job offer in the form of a statement which indicates that the foreign beneficiary is to be employed in the United States in a managerial or executive capacity. Such letter must clearly describe the duties to be performed by the foreign beneficiary
Q, What are the businesses requirements?
A: USCIS rules require that the prospective employer in the United States be the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the foreign beneficiary was employed abroad. There is no specific requirement as to the size of the petitioning company or its gross business volume. But USCIS regulations require that the employer is conducting business in two or more countries, one of which is the United States, either directly or through affiliates or subsidiaries. In addition, the company must have been in business in the United States for at least one year prior to the filing of the immigrant visa petition.
Q, What does affiliate mean?
A: The USCIS rules contain definitions of “affiliate“ for purposes of determining whether an employer qualifies to use the first preference. “Affiliate“ is defined to mean
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 individual owning and controlling approximately the same share or proportion of each entity; or
3. international accounting firms.
Q, What does subsidiary mean?
A: “Subsidiary“ is defined to mean: a firm, corporation, or other legal entity of which a parent owns, directly or indirectly,
1. more than half of the entity and controls the entity;
2. of a fifty-fifty joint venture and has equal control and veto power over the entity; or
3. less than half of the entity, but in fact controls the entity.
Q, How long does the business need to be trading in the USA?
A: There is no requirement that a qualifying relationship existed between the U.S. and foreign entity for a period of one year prior to the filing of the EB1-C petition. The regulations only require that the U.S. entity must have been doing business for at least one year. As a result, a U.S. entity that has been acquired by a foreign corporation may immediately file a first preference petition on behalf of a manager or executive who worked for the foreign entity in a qualifying capacity for the requisite period of time.
Q, Who can qualify as a manager?
A: In order to be qualified as a manager, the applicant must satisfy several requirements. Usually, first-line supervisors are excluded from the statutory definition of a manager unless the employees supervised are professionals. Staffing levels are to be considered in relation to the reasonable needs of the business and its stage of development.
The statutory definition of a manager provides that, a manager must:
A. Manage a corporation, department, subdivision, or function.
B. Supervise and control the work of other supervisory, professional, or managerial employees, or else manage essential functions.
C. Have the authority to make personal decisions as to hiring and termination, or else function at a senior level, or
D. Exercise discretion over the day to day operations of the activity or function for which he or she has authority.
Q, What is the required period of employment?
A: With regard to the length of employment abroad, the government permits the foreign person to have worked for one year out of the preceding three years for the employer abroad, and the regulations do not foreclose the possibility of aggregating employment time during the preceding three-year period in order to attain the one-year requirement. If the foreign beneficiary is already in the United States, for example, in L1 status, the USCIS rules for priority workers permit that foreign beneficiary to qualify for immigration in the first preference if the foreign beneficiary was employed abroad for at least one year in the three years immediately preceding entry as a nonimmigrant.
Q, How difficult is this?
A: The burden of proof in EB1-C cases rests solely with the petitioner. The petitioner has to provide substantial evidence of the employer and the foreign national’s position and duties. If a beneficiary is qualified, the probability of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, then the case should be approved routinely.
Q, What are the criteria for Execs & Managers on the I-140 form?
A: The I-140 petition for EB1-C multinational executive or manager should include the following documents:
1. Provide evidence and a cover letter that describes the name of the foreign employer, the position offered in the U.S., the position held abroad and the years of employment as well as the date the beneficiary transferred to the U.S. State the claimed relationship between the foreign employer and the U.S. petitioner, i.e. affiliates, subsidiary, joint venture etc.
2. Provide evidence that the U.S. employer has been doing business for at least one year prior to the filing of the petition.
Q, Is there a fast-track option?
A: No. While premium processing services are available for many green card options, it is not for the EB-1C.
Q, What are the fees?
A: The filing fee for Form I-140 is $580.
Q, What about the Family?
A: The spouse and unmarried children under 21 of the foreign national are derivative beneficiaries if the I-140 gets approved.
Q, Can I file multiple visa applications?
A: Yes. But a separate Form I-140 petition must be filed, with the required fee and supporting documentation for each requested visa category. A petitioner should not check multiple categories on one I-140 Form.
Q, How to file a petition?
A: An I-140 Form can be filed electronically or by mail. But supporting evidence has to send to service centres. If a petitioner e-files Form I-140, it will automatically be routed to the appropriate Service Center, and the petitioner will receive a receipt indicating the location to which it was routed. All further communication, including submission of supporting documents, must be directed to the receiving location indicated on the e-filing receipt.
Q, Can I re-apply if the EB1-C is rejected?
A: The law does not restrict the time an EB1-C petition can be filed again after the rejection of the previous filing. A previously rejected petition does not bar a petitioner from submitting another petition subsequently, regardless which classification is concerned. However, unless the foreign beneficiary’s circumstance has improved, it is not advisable to simply submit a similar petition again.
Q, How does the evidence need to be prepared?
A. Follow the tips below for how to organize the evidence:
1. Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a request for evidence in the instances where the required evidence described in the instructions and regulations are not initially provided.
2. If providing photocopies of documents, provide clear legible copies.
3. All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator’s abilities.“ It is helpful if the English translation is stapled to the foreign language document.
4. Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.
Q, Can the employee change employer?
A: No. If the foreign national changes employers while I-140 is pending, a new I-140 must be filed.