Employment based first preference (EB1) multinational executives and managers
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The employment based first preference (EB1) includes a category for multinational executives and managers. The EB1 preference category is always "current" for all countries in the monthly Visa Bulletin. For this reason, many marginal petitions are filed in the hope that the beneficiaries will be found qualified. This, in turn, has resulted in the USCIS scrutinizing these types of petitions very closely. For the most part, they resolve all doubts against the petitioner. Only those who submit very strong, well documented petitions should expect to receive serious consideration. Even in cases involving well established companies, the USCIS often questions whether the beneficiary genuinely qualifies as an "executive" or "manager" under the statute.
This immigrant preference category is very similar to the L1A nonimmigrant category. The only significant difference being the EB1 requirement that the U.S. business entity must show that it has been actively doing business for at least one full year.
The Immigration and Nationality Act, at Section 203(b)(1)(C) makes the following provision:
Certain multinational executives and managers.--An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.This authorization is further amplified in Section 204.5(j)(2):
Definitions. As used in this section:Section 204.5(j)(3) sets forth the required initial evidence:
Affiliate means:(A) One of two subsidiaries both of which are owned and controlled by the same parent or individual;
(B) 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
(C) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office.
Executive capacity means an assignment within an organization in which the employee primarily:Managerial capacity means an assignment within an organization in which the employee primarily:(A) Directs the management of the organization or a major component or function of the organization;
(B) Establishes the goals and policies of the organization, component, or function;
(C) Exercises wide latitude in discretionary decisionmaking; and
(D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.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.(A) Manages the organization, or a department, subdivision, function, or component of the organization;
(B) 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;
(C) 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, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
(D) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
Initial evidence--Section 204.5(j)(4) sets forth further refinements of the definitions of certain terms:
(i) Required evidence. 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:
(ii) Appropriate additional evidence. In appropriate cases, the director may request additional evidence.(A) If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien 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
(B) If the alien 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 alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;
(C) 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 alien was employed overseas; and
(D) The prospective United States employer has been doing business for at least one year.
Determining managerial or executive capacities--And finally, Section 204,5(j)(5) establishes that the petition must include a formal job offer:
(i) Supervisors as managers. 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.
(ii) Staffing levels. 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, shall be taken into account. An individual shall 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.
Offer of employment. 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 alien 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 alien.
