Frequently Asked Questions of EB1-C (Multinational Executives or Managers)

 

Q1:What is EB1-C– Multinational executives or managers?

A: EB1-C is one of the groups in the first preference category of employment-based immigration, for multinational executives or mangers 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.

Q2: Who qualifies as a multinational executive or manager?

A: 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 a petition for EB1-C?

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.

Q4: What form does EB1-C petition file?

A: All petitions of EB-1 need to file Form I-140.

Q5: Is a labor certification required before the filing of I-140?

A: No labor certification is required before the I-140 filing for all groups of EB-1.

Q6: Is a job offer required for EB1-C?

A: Yes. A job offer is required for EB1-C petition.

Q7: What are the major advantages of applying for EB1-C: Multinational executives or managers?

A: 1. No labor certification is required.

2. All visas are current so it much faster to obtain a Green Card in this category than others.

Q8: What is evidence that is required to submit along with EB1-C petition?

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.

Q9: What evidence is appropriate to submit to support an EB1-C case?

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 compnay: 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 has directed.

3. Documentation of a job offer: No labor 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

Q10: What are the requirements of the petitioning company?

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 be 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 fling of the immigrant visa petition.

Q11: What is “affiliate“ for the purpose of EB1-C petition?

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.

Q12: What is “subsidiary“ for the purpose of EB1-C petition?

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. 50% 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.

Q13: Can a foreign company satisfy the one-year doing business requirement in the U.S. by acquiring a U.S. company?

A: There is no requirement that a qualifying relationship exist 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.

Q14: Who qualifies as a manager for the purpose of EB1-C petition?

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.

Q15: Who qualifies as a manager for the purpose of EB1-C petition?

A: A foreign national is qualified as an executive if he/she satisfies the following requirements:

1. The person must manage an organization, major component, or function.

2. The person has the authority to establish goals and policies.

3. The person has wide latitude and discretionary decision making authority OR

4. The person receives only general supervision from higher executives, board of directors, or stockholders.

The definition also includes executives who perform tasks necessary to produce the product or provide the service offered by the organization if the executive is also a professional, such as an engineer or architect.

Q16: Can I aggregate the time I work for the foreign company to satisfy the one out of three year working requirement?

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.

Q17: How difficult is it to have EB1-C petition approved?

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.

Q18: What eligibility criteria should be identified in the case of EB1-C Multinational Executive or Manager petitions in Form I-140?

A: The I-140 petition for EB1-C multinational executive or manger should include the follow 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.

Q19: Can a petitioner request premium processing for the I-140 petition?

A: Yes. If a petitioner requests Premium Processing Services for Form I-140, the petitioner must also file Form I-907, Request for Premium Processing Service. Send Form I-140 and I-907 together to the address listed in the Form I-907 filing instructions. Do NOT send requests for Premium Processing to a Lockbox facility.

Q20: Can a request of premium processing be submitted when the I-140 is pending?

A: Yes. If a petitioner has already filed Form I-140 and he/she wishes to request Premium Processing Service, file Form I-907 with the Service Center where the Form I-140 is pending. See Form I-907 filing instructions for further information. Do NOT send requests for Premium Processing to a Lockbox facility. A petitioner must include a copy of Form I-797C, Notice of Action, which shows your Form I-140 was accepted, or a copy of the transfer notice, if applicable, showing the location of Form I-140. To ensure that Form I-907 is matched up with the pending Form I-140, a petitioner must fully answer questions 1 through 5 in Part 2 of Form I-907. If this information is not provided, Form I-907 will be rejected.

Q21 What Is the Filing Fee for I-140?

A: The filing fee for Form I-140 is $580.

Q22: How about the family of foreign beneficiary? Are they also beneficiaries of my I-140 petition?

A: The spouse and unmarried children under 21 of the foreign national are derivative beneficiaries if the I-140 gets approved.

Q23: Can a petition of EB1-C and other categories be filed simultaneously?

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.

Q24: How can a petition be filed?

A: An I-140 Form can be file electronically or by mail. But supporting evidence has to send to service centers. 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.

Q25: Is priority date matter in a EB1-C case?

A: No because all visas are current.

Q26: Can a petition be withdrawn?

A: Yes, the petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS .

Q27: How can a petitioner request the withdrawal of a Form I-140 petition?

A. The petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS Withdrawal requests should include:

1. A statement indicating that the Form I-140 petitioner wishes to withdraw the petition;

2. The Form I-140 petition receipt number;

3. The name, address and phone number of the petitioner;

4. The name of the foreign beneficiary beneficiary;

5. The foreign beneficiary registration number of the foreign beneficiary beneficiary, if known;

6. The petitioner’s signature or the Form G-28 representative.

Q28: If an EB1-C petition gets rejected, how long does it take to file under EB1-C or other categories again?

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.

Q29: How should evidence accompanied the petition be organized?

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.

Q30: May the foreign employee changes employers while I-140 petition is pending?

A: No. If the foreign national changes employers while I-140 is pending, a new I-140 must be filed.

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