Immigration and Nationality Act (INA)1, provides for an immigrant visa category reserved for individuals who conform to the definition of the Multinational Executive or Manager. This category is known as EB1C. To be successful in applying for this category, the petitioning entity needs to convince USCIS adjudicators that the beneficiary:
- Had been employed outside the United States for at least one year in the last three years immediately preceding the application;
- In a managerial or executive capacity;
- Now seeks to enter the United States to continue that employment in a managerial or executive capacity with the same firm, corporation, organization or legal entity or its legitimate subsidiary or affiliate;
The petitioner is further required to prove that the petitioning employer is a U.S. employer who had been in business for at least one year, or was doing business for at least one year as an affiliate or a subsidiary of the same corporation or other legal entity, which had employed the applicant abroad.
1. Managerial capacity means an assignment with the organization in which the employee personally
- Manages the organization, department, subdivision, function or component; or
- Supervises and controls the work of other supervisory, professional 'or' managerial employees, or
- Manages an essential function within the organization or department or subdivision of the organization; and
- Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision; functions at a senior level and exercises discretion over day-ta-day operations of that activity or function within the organization2.
Important! First line supervisors are not considered managers for purposes of the eligibility for EB1C, unless the employees they supervise are professionals3 and the position the applicant/beneficiary occupies is 'primarily managerial'.4
Important! Managing a function of the organization falls within the definition of the managerial capacity even when the function manager does not oversee any employees but manages “an essential function” or operation within the organization.5
2. Executive capacity means an assignment in an organization in which the employee primarily:
- Directs the management of the organization or a component or function;
- Establishes goals and policies;
- Exercises wide latitude in discretionary decision making; and
- Receives only general supervision or direction from higher level executives, board of directors or stockholders.
Important! Being a professional and manager or executive are not mutually exclusive. The employee might at the same time be a professional who also performs managerial or executive functions.6
Important! In determining whether an individual is acting in a managerial or executive capacity, the adjudicators take into account the reasonable needs of the organization, component or function in light of the overall purpose; stage of development of the organization, component or function, not only or at all, the number of employees supervised by the applicant/beneficiary.7
3. Affiliate is defined as a legal entity owned and controlled by the same group of individuals, in approximately the same share or proportion of each entity.8 However, by the statute, precedent, regulation and policy, the definition is read broadly when it comes to internationally recognized corporate names. For instance:
- Accounting firms that have “internationally recognized name(s)” as affiliates, notwithstanding the fact that they are actually separate partnerships, are still considered affiliates.9
- Firms who market accounting services under the same internationally recognized name and the same agreement, will still be considered affiliates.10
- Management consulting firms who work with accounting firms will still be considered affiliates as long as they market their services under an the same internationally recognized name or work with a successor worldwide coordinating organization even if it is not collectively owned or controlled.11
- International management consulting firms will be considered affiliates even when they are separate entities from the internationally known accounting firm, yet continue to maintain the qualifying worldwide organizational structure, and even if they are no longer connected to that internationally known accounting firm.12
4. Subsidiary is defined as a joint venture if there is equal control and veto power; or when the proprietary control is less than one-half ownership, if there is control in fact.13 The “one of three year employment requirement” may be met even if the person is in the U.S. for more than 3 years if he or she is working for same employer, affiliate, or subsidiary in the U.S. and was employed for at least one of the last 3 years by the company abroad before entering in nonimmigrant status.14
5. Qualifying relationship refers to either parent, affiliate or subsidiary relationship between the petitioning U.S. entity and the entity that employed the applicant/beneficiary in the managerial or executive capacity outside of the USA, provided that
- The petitioning entity has maintained such qualifying relationship with the beneficiary's foreign employer;
- The foreign entity continues to maintain such qualifying relationship with the. U.S. petitioner at the time the immigrant petition is filed.15
EXISTENCE OF THE FOREIGN ENTITY
Foreign entity needs to be in existence when the petition is filed. However, unless the specific section of the entity or its branch were the applicant/beneficiary used to work outside of the USA was a separate legal entity from the larger foreign entity, it is the existence of the larger entity and not that specific branch that counts.16
CONTINUATION OF THE EMPLOYMENT
Another element of eligibility is that the applicant/beneficiary needs to seek entry into the United States for a sole purpose of continuing to render services to the same employer, or its subsidiary or affiliate, in a managerial or executive capacity.17
NO LABOR CERTIFICATION
Unlike EB-2 and EB-3 categories, no labor certification is required as a prerequisite to filing immigrant petition by the U.S. employer in Eb1C category. All that is needed is a genuine job offer by the same U.S. employer.
These types of applications need to be thoroughly documents to be successful.
Read More on detailed analysis of the documentation requirements.
- §203(b)(1)(C) — codified in 8 U.S.C. §1153(b)(l)(C)
- INA §101(a)(44), 8 U.S.C. §101(a)(44);8 C.F.R. §204.5(j)(2).
- 8 C.F.R. §204.5GJ(4)
- Q Data Consulting, Inc. v. INS, 293 F.Supp.2d 25 (D.D.C. 2003)
- AFM at 22.2(i)(3)(E)(I); 8 C.F.R. §204.5GJ(2); Matter 01_, LIN 07 060 50083, 2009 WL 1450548 (AAO Jan. 6,2009)
- Immediate Business Sys., Inc. v. Richards, 645 F. Supp. 355 (ND. Ga. 1986); Matter of Cantec Representatives, Inc., 19 I&N Dec. 241 (Comm. 1984). A technical support specialist was determined not to be an executive or manager under former Schedule A, Group IV. Omni Packaging, Inc.' v. INS, 930 F Supp. 28, 32-33 (D.P.R. 1996). See also Q Data Consulting, Inc. v. INS, 293 F.Supp.2d 25 (D.D.C. 2003).
- 8 C.F.R. §204.5(j)(2).
- 8 C.F.R.§204.5(j)(2).
- IMMACT90 §206(a).
- 8 C.F.R.§204.5(U)(2).
- PL 106-95, 113 Stat. 1312 (Nov. 12, 1999) §6
- (AFM at 32.2(a)(2) and 22.5(b); Memo, Yates, Deputy Ex. Assoc. Comm., Immigration Service Division, Office of Field Operations, HQADN 70/6.2.12, AD 00-17 (Aug. 10, 2000), reprinted in 77 NO. 32 Interpreter Releases 1203, 1211-13 (Aug. 21,2000).
- Memo, Yates (Aug. 10, 2000), supra. An LLC may also .be a subsidiary. AFM at 22.2(i)(3)(B)(4).
- 8 C.F.R. §204.5(j)(3)(i)(B).
- 8 C.F.R. §204.5(j)(3)(i)(C).
- Matter 01_, LIN 0 004 56752, 2010 WL 4089670 (AAO Apr. 8,2010); Matter 01_, LIN 08134 50540, 2010 WL 6262404 (AAO May 11, 2010); Matter 01_, LIN 06 18952335, 2008 WL 5652010 (AAO, Nov. 7, 2008)
- 8 C.F.R. §204.5(j)(3)(i)(A)