Question 1. What Is Eb-1 Immigrant Visa Petition?
The 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 the EB-1 criteria. The burden of proof in EB-1 cases rests solely with the petitioner and the alien applicant. The First Preference Immigration Petition is an employment-based petition for Permanent Residence in the United States for those who are among the most able and accomplished in their respective fields within the arts, sciences, education, business, or sports.
There are three (3) types of EB-1 petitions:
- EB-1A: Alien of Extraordinary Ability;
- EB-1B: Outstanding Researcher or Outstanding Professor;
- EB-1C: Multinational Executive or Manager.
The most notable advantage for those who qualify for an EB-1 petition is the lack of a Labor Certification requirement. Obtaining a Labor Certification is a time-consuming and expensive process that seeks to determine whether a qualified U.S. worker is available to fill the position sought by the petitioning alien. In addition to the time and expense of the Labor Certification process, an alien risks being denied a Labor Certification if a U.S. worker with technical qualifications for the employment is found, even if the alien is actually more suitable for the position based on factors not considered in the Labor Certification process.
In an EB-1 petition, the Labor Certification is not required at all. In EB-1A petition, a permanent job offer is not required, and an alien may petition immigration by himself or herself. However, in EB-1B and EB-1C petitions, a permanent job offer is required. In other words, a U.S. employer must be the petitioner in EB-1B or EB-1C petition.
Question 2. What Is The Qualifying Relationship Between The U.s. Employer And The Organization Abroad?
EB-1C is one of the several categories established by the U.S. Congress for obtaining immigrant status, i.e., for attaining U.S. lawful Permanent Residence. Immigrants refer to foreign individuals coming to the United States permanently. They are more officially known as “Lawful Permanent Residents.” These terms are used interchangeably. The categories for employment-based immigrants are defined in the Immigration and Nationality Act. What is become known as EB-1C immigrants refer to the category of aliens who are eligible for permanent residence as intra-company transferees and continuing to work in the United States in a managerial or executive capacity.
When an employer wishes to transfer an alien employee working abroad to a U.S. company as an EB1 Multinational Executive or Manager immigrant, a qualifying relationship must exist between the foreign employer and the U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity. To establish a qualifying relationship under the regulations, the petitioner must show that the foreign employer and the U.S. employer are the same employer (i.e., a U.S. entity with a foreign office), or related as a parent/subsidiary or as affiliates.
In this regard, ownership and control are the factors that must be examined in determining whether a qualifying relationship exists between the U.S. company and foreign entity for purposes of this visa classification. In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control; control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. In addition, the petitioner must demonstrate that the U.S. organization has the ability to pay the beneficiary’s salary.
The petitioner must demonstrate that the:
- U.S. organization and the organization abroad maintain a qualifying relationship;
- U.S. organization and the organization abroad are both actively engaged in doing business; and
- U.S. organization has been actively engaged in doing business for at least one year.
Question 3. What Privileges Do I Enjoy On Eb-1 Employment Based Immigrant Visa?
On EB-1 immigrant visa, you may:
- Reside permanently in the U.S.
- Work in the U.S.
- A labor certification is not required
- Travel freely in and out of the U.S.
- Apply for dependent visas for your spouse and unmarried children under 21 years.
Question 4. What Is The Definition Of Multinational?
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. Employment experience in a U.S. company alone does not count. The alien beneficiary must have been employed abroad by a multinational entity.
Question 5. What Is The Definition Of ‘extraordinary Ability’ For Eb-1 Employment Based Immigrant Visa?
‘Extraordinary ability’ means a level of expertise indicating that you are one of that small per cent who has risen to the very top of your field of endeavor.
Your Achievements must:
- Have been demonstrated by sustained national or international acclaim.
- Be recognized in the field through extensive documentation.
Question 6. What Are The General Requirements For Eb-1c Immigrant Visa Classification?
The requirements for EB1 Multinational Executive or Manager Immigrant classification are similar to those for L-1A nonimmigrant classification, but are more rigorous both in the law and in its enforcement. The EB-1C classification is similarly for individuals who have been employed abroad for one year in a qualifying capacity and who are coming to perform qualifying work for a related company in the United States.
Generally, an alien beneficiary for EB-1C classification must have been employed abroad by a foreign employer in a managerial or executive capacity for one continuous year of the previous three years; who is being transferred permanently to the U.S. to be employed by a parent, branch, affiliate or subsidiary of that foreign employer in a similar managerial or executive capacity. The Labor certification is not required but a job offer is required.
Question 7. Who Is Eligible To Apply For Eb-1 Visa As A Foreign National With ‘extraordinary Ability’?
You must be a foreign national who:
Possesses ‘extraordinary ability’ in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.
Seeks to enter the U.S. to continue work in the area of ‘extraordinary ability’ and Upon entry into the U.S. will substantially benefit prospectively the U.S.
Question 8. What Are Detail Requirements For Multinational Executives Or Managers?
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.
An EB-1C petition for a multinational executive or manager must be accompanied with a statement from an authorized official of the petitioning U.S. Company which establishes that:
- If the alien is outside the United States, for at least one out of the three years immediately preceding the filing of the petition, the alien has been employed with an organization outside the United States in a managerial or executive capacity; or
- If the alien is in the United States working for the petitioning employer, in the three years preceding transfer to the U.S. as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;
- The employer in the United States is the same employer, a parent, a subsidiary, or an affiliate of the organization for which the alien worked overseas in a managerial or executive capacity; and
- The U.S. employer has been doing business for at least one year.
Question 9. What Is The Managerial Capacity?
Since the position held by the EB1C 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:
- Manages the organization, or a department, subdivision, function, or component of the organization;
- 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;
- 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
- Exercises discretion over 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 the managerial capacity merely by virtue of the supervisory duties unless the employees supervised are professionals.
Question 10. Who Is Eligible To Apply For Eb-1 Visa As An ‘outstanding Professor Or Researcher’?
To qualify for an EB-1 visa as an ‘outstanding professor or researcher’ you must be a foreign national who:
- Is recognized internationally as ‘outstanding’ in a specific academic area
- Possesses at least three years of experience in teaching or research in the academic area, and
Seeks to enter the U.S. for a:
- Tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area.
- Comparable position with a university or institution of higher education to conduct research in the area.
- CComparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.
Question 11. What Is The Definition Of Function Manager?
The term functional or function manager applies generally when a 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. The definition of the term manager includes functional managers. A manager may qualify for EB1C classification as a functional manager if the petitioner can show, among other things that the beneficiary will be primarily managing or directing the management of a function of an organization, even if the beneficiary does not directly supervise any employees.
- For “function managers,” the managerial capacity means an assignment within an organization in which the beneficiary primarily:
- 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.
It must be clearly demonstrated, however, that the “essential function” being managed is not also being directly performed by the alien beneficiary. For example, an alien who claims to primarily direct the laboratory research on chemical compounds for a specialty chemical company cannot also be primarily performing the day-to-day laboratory research. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.
Question 12. What Evidence Must I Provide For A Green Card As Eb-1 Alien Of ‘extraordinary Ability’?
Your petition for an alien of extraordinary ability must be accompanied by evidence that you have sustained national or international acclaim and that your achievements have been recognized in the field of expertise. Such evidence must include evidence of a one time achievement (that is, a major, internationally recognized award), or at least three of the following:
- Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; or
- Documentation of your membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; or
- Published material about yourself in professional or major trade publications or other major media, relating to your work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; or
- Evidence of your participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought; or
- Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; or
- Evidence of your authorship of scholarly articles in the field, in professional or major trade publications or other major media; or
- Evidence of the display of your work in the field at artistic exhibitions or showcases; or
- Evidence that you have performed in a leading or critical role for organizations or establishments that have a distinguished reputation; or
- Evidence that you have commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
- Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
Question 13. What Are The Major Advantages Of Eb1 Multinational Executives Or Managers Petition Over Other Green Card Application Options?
The immigration category of EB1 Multinational Executives or Managers for U.S. permanent residency has the following advantages:
- The immigrant visas are current for EB1, so it is much faster to obtain a U.S. Green Card in this category than other categories under EB2 and EB3;
- Avoiding the long Labor Certification process reduces the huge burden of obtaining a Green Card in the United States;
- Because it does not require a Labor Certification, it speeds up the permanent residency process considerably;
- Your employer does not need to show that there are no qualified U.S. workers for the position;
- It allows you to obtain work and travel authorization for yourself and your family members quickly;
- It is less likely than other immigration categories to be denied by USCIS, if the applicant meets all the regulatory requirements.
Question 14. I Am A Manager In A Multinational Company. Is The Eb1 Multinational Executive Or Manager Petition Difficult To Get Approval?
Many multinational executives or managers may wonder whether they could qualify for the EB1 Multinational Executives or Managers immigration visa classification. The common misunderstanding could be that the EB1 Multinational Executives or Managers immigrant visa application is very hard to get approval. Therefore, some alien executives or managers may apply for Green Card in other categories.
Due to the immigrant visa number retrogression for some countries, the alien applicants from these countries need to wait for years to get Green Card application approval in EB-2 and EB-3 categories. Many new immigrants are looking for other options. The EB1 Multinational Executives or Managers immigration visa category is such an option for those aliens with executive capacity or manager capacity in multinational companies. Because the EB-1C category is in the First Preference, and the immigrant visas are immediately available.
Question 15. What Evidence Must I Provide As Eb-1 ‘multinational Executive Or Manager’?
A petition for a ‘multinational executive or manager’ must be accompanied by a statement from an authorized official of your petitioning U.S. employer which demonstrates that:
If you are:
- Outside the U.S., in the three years immediately preceding the filing of the petition, you been employed outside the U.S. 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
- Already in the U.S. working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which you were employed overseas, in the three years preceding entry as a nonimmigrant, you were employed by the entity abroad for at least one year in a managerial or executive capacity
- Your prospective employer in the U.S. is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which you were employed overseas; and
- Your prospective U.S. employer has been doing business for at least one year.
Question 16. What Is The Major Requirement For Employer?
USCIS regulation requires that the U.S. employer is the same employer or a subsidiary of the company by which the alien beneficiary was employed abroad. There is no requirement for the size of the petitioning U.S. Company or its business.
But USCIS requires that the U.S. employer should conduct business in two or more countries either directly or through affiliates or subsidiaries. Also, the U.S. company must have been in business for at least one year prior to the fling of the EB-1C Multinational Manager or Executive immigrant visa petition.
Question 17. Is The Company’s Size Important For Uscis To Determine A Petitioner’s Eligibility For An Eb-1c Petition?
Some petitioners may argue that their beneficiary’s proposed position fits under the statutory definitions for managerial and executive capacity, and USCIS adjudicators should not place undue emphasis on the size of the petitioning entity’s support staff without taking into account the reasonable needs of the organization.
While the size of a company’s personnel cannot be the sole consideration for USCIS to determine a petitioner’s eligibility for an EB-1C petition, this factor is relevant for USCIS and should be considered, as it allows USCIS to gauge the petitioner’s ability to relieve the beneficiary from having to primarily engage in the daily operational tasks of an organization.
When a petitioner fails to provide a detailed description of the beneficiary’s proposed tasks within the context of the organizational hierarchy at the time of filing, USCIS may conclude that the beneficiary would be required to assist with daily operational tasks and would not be able to focus on primarily qualifying managerial or executive tasks.
Question 18. Can I Bring My Dependents To The U.s. On Eb-1 Immigrant Visa?
Yes, upon approval of your Form I-140, Immigrant Petition for Alien Worker, your spouse and unmarried children under 21 years of age may apply for immigrant visas through Adjustment of Status in the U.S. or through consular processing at a U.S. consulate outside the U.S.
Question 19. How Can I Check The Status Of My Form I-140, Immigrant Petition For Alien Worker?
You may check visa status by using Vasari’s free visa status service.
Question 20. How Can I Appeal A Denial Of My Form 1-140, Immigrant Petition For Alien Worker Petition?
If you’re Form I-140, Petition for Alien Worker is denied, you may file Form I-290B, Notice of Appeal, along with the required fee at the appropriate USCIS Service Center within 33 days of receiving the denial. You may also refile your I-140 petition with additional evidence.
Question 21. What Are The Main Advantages For An Eb1 Multinational Executives And Managers Immigrant Petition?
Many employment based immigrant visa application categories require both a job offer by a U.S. employer and a Labor Certification approval by the U.S. Department of Labor (DOL). A job offer is required for EB-1C immigrant visa application for multinational executive or manager, but a Labor Certification approval from U.S. Department of Labor is not required, if the alien beneficiary had one year or more experience abroad as an executive or manager.
The two main advantages for an EB1 Multinational Executives and Managers immigrant petition are:
- The employer and the alien employee can avoid the Labor Certification process, which are typical to the EB-2 and EB-3 classifications, and
- The immigrant visa numbers are “current,” even for high-demand green card countries such as India and China, so the alien employee is immediately eligible to file an Green Card application after the EB-1C immigrant petition approval.
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