Initial Documentation

Thoroughly documenting and presenting all relevant evidence to support any immigration application is a prudent thing to do if positive adjudication result is kept in mind. It is especially important for highly technical petitions including those for EB1C employment based immigrant category for Multinational Managers and Executives where just about every eligibility element has thus far been addressed, interpreted and litigated. At the very least the following documentation is required to prove eligibility to the EB1C immigrant category:

a. A detailed statement for the U.S. employer establishing and outlining:

1. the applicant/beneficiary’s employment with the company for a period of at least one year in the past three years;
2. that U.S. employer has been doing business (i.e., holding goods and/or services out for sale) for one year;
3. During which year the qualifying relationship existed between the petitioning U.S. organization and the foreign entity at which the applicant/beneficiary was employed;
4. That said qualifying relationship continued to exist on the day when the application is filed.1

b. Evidence of Managerial/Executive Nature of The New Position

i. Management that involves supervision of others. If the applicant/beneficiary’s new position involves supervision of others, evidence of the reasonable need of the organization to have a manager that would supervise other managerial employees must be showed in light of the organization’s overall purpose and stage of development. Employer must provide a job offer in the form of a statement describing the duties of the position and the capacity in which the person will be employed.

ii. Managerial position that involves management of a function as opposed to of personnel, must be documented by evidence showing that the applicant/beneficiary would be working “primarily” as a manager.

Important! In determining whether a position in question is primarily managerial adjudicators might consider factors like

1. the overall size of the organization2;
2. the degree of managerial nature of both the former and the prospective position of the applicant/beneficiary3;
3. whether duties are primarily managerial of a specific organizational function4.

iii. Evidence that the foreign organization is in operation when the decision about the immigrant visa/petition is filed and also when made. If foreign entity stops operating prior to visa appointment the person is ineligible for status.5

Important! In adjustment of status situation, the adjustment will not be denied even if the foreign entity ceased to exist prior to completion of the adjustment of status process. Only if I-140 is revoked by USCIS, would the adjustment of status denied. In other words, it cannot be denied “solely because the overseas subsidiary or affiliates ceased operations after the 1-140 was approved but prior to the 245 interview.”6

iv. Evidence that the U.S. Employer is not merely a shelf corporation but is active organization, conducting substantial business, which truly needs an. executive or manager.7

  1. 8 C.F.R. §204.5(j)(3).
  2. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006)
  3. Q Data Consulting, Inc. v. INS, 293 F.Supp.2d 25 (D.D.C. 2003); IKEA U.S.
  4. Inc. v. INS, 48 F.Supp.2d 22 (D.D.C. 1999)
  5. Letter, Odom, Chief Advisory Opinions Division (Nov. 17, 1992), reprinted in 70 No.6 Interpreter Releases 182, 198-99 (Feb. 8, 1993).
  6. Letter, LaFleur, Chief, Business and Trade Services Branch, INS (July IS, 1996), reprinted in IS AILA Monthly Mailing 511 (Sept. 1996)
  7. Systronics Corp. v. INS, 153 F.Supp.2d 7 (D.D.C. 2001) [upholding revocation in dicta on grounds that there were 2 employees, that the company seemed to be operating out of 2 locations with a small sublease, and that the deputy manager who would be running the company in the beneficiary’s absence only had 6 months experience.