(3) E13 Multinational Executives and Managers – Section 203(b)(1)(C) of the INA.  

 

(A) Explanation of Terms.  Except as otherwise noted, terms pertaining to the certain multinational executives and managers have the same meanings as discussed in Chapter 32.2 of this field manual. 

As described in 8 CFR 204.5(j)(3), 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. 

In addition, under 8 CFR 204.5(g)(2), the petitioner must demonstrate that the U.S. organization has the ability to pay the beneficiary’s salary. 

(B) Qualifying relationship between the U.S. employer and the organization abroad.  When an employer wishes to transfer an alien employee working abroad to a U.S. company location as an E13 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, as specified in 8 CFR 204.5(j)(2).  To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates."  See generally § 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 CFR 204.5(j)(2) (providing definitions of the terms “affiliate” and “subsidiary”).  In this regard, “ownership” and “control” are the factors that must be examined in determining whether a qualifying relationship exists between the United States and foreign entities for purposes of this visa classification.  See 8 CFR 204.5(j)(2)(definitions of “affiliate” and “subsidiary”).  The foreign entity must own and control the U.S. entity.  See Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982).  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.  Matter of Church Scientology International, 19 I&N Dec. at 595. 

(1) Subsidiary and Parent:  Under 8 CFR 204.5(j)(2), the term “subsidiary” means a firm, corporation, or other legal entity of which a parent: (a) owns, directly or indirectly, more than half of the entity and controls the entity; (b) owns, directly or indirectly, half of the entity and controls the entity; (c) owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or (d) owns, directly or indirectly, less than half of the entity, but in fact controls the entity.  While the term “parent” is not directly defined by the regulations, it is the owner of a subsidiary.  

(2) Affiliate: 8 CFR 204.5(j)(2)(A)–(C) sets forth three types of qualifying affiliate relationships: (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 owning and controlling approximately the same share or proportion of each entity; or (3) A partnership (or similar organization) that is organized outside the United States to provide accounting services to the U.S. partnership.  Such a partnership shall be considered affiliated with a partnership organized within the United States if the foreign partnership markets its services under the same internationally recognized name acquired through an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or other similar organization) as the U.S. partnership. 

(3) Branch Offices: While the L-1 nonimmigrant visa regulations allow for a “branch office” to petition for a manager or executive, the E13 immigrant visa regulations do not provide for a foreign branch office as a petitioner.  The nonimmigrant regulations define the term "branch" as "an operating division or office of the same organization housed in a different location." 8 CFR 214.2(l)(1)(ii)(J).   

Neither an unincorporated branch office of a foreign employer nor a nonimmigrant alien is competent to offer permanent employment to a beneficiary for the purpose of obtaining an immigrant visa for the beneficiary under section 203(b)(1)(C) of the Act.  See Matter of Thornhill, 18 I&N Dec. 34 (Comm. 1981).  The petitioner must be a U.S. citizen, corporation, partnership, or other legal entity to file this immigrant visa petition.  Thus, a U.S. corporation with an overseas branch may file an E13 petition, but a foreign corporation with a branch office in the United States may not.  

NOTE: Adjudicators should keep in mind the difference between a “self-incorporated” petitioner and a “sole proprietorship.”  Although a self-incorporated individual may only have one owner or employee, a corporation is a separate and distinct legal entity from its owners or stockholders and may petition for that owner or employee.  See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).    

A “sole-proprietorship,” on the other hand, is a business in which one person operates the business in his or her personal capacity.  Black's Law Dictionary 1398 (7th Ed. 1999).  Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner.  See Matter of United Investment Group, 19 I&N Dec. 248, 250 (Comm. 1984).  A sole-proprietorship may not file an E13 petition on behalf of the alien owner, as such would be considered an impermissible self-petition. 

(4) Limited Liability Corporations (LLCs):  An LLC is deemed to be a separate entity from its members, and may therefore file an immigrant visa petition on behalf of a manager or executive.  An LLC is a relatively new business structure allowed by state statute.  LLCs are popular because, similar to a corporation, owners have limited personal liability for the debts and actions of the LLC.  Other features of LLCs are more like a partnership, providing management flexibility and the benefit of pass-through taxation.  LLCs may have one or more members.  Generally, when an LLC has only one member, the IRS will disregard or ignore the fact that it is an LLC for the purpose of filing a federal tax return.  Note though that this is only a mechanism for tax purposes, and does not change the fact that the LLC is legally a separate entity from the member.  Similarly, even though most multiple member LLCs file a Form 1065 partnership tax return, the LLC is still, legally, a separate entity.    

(C) Doing Business. “Doing business” means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization.  Doing business does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.  [See 8 CFR 204.5(j)(2)] 

(1) Foreign employer must continue to do business.  Both the U.S. employer and at least one qualifying organization abroad must be doing business up until the time of visa issuance or adjustment of status.  The mere presence of an office or an agent either in the United States or abroad is not considered to be doing business for E13 purposes.   

Note:  If the beneficiary’s overseas employer’s foreign operations cease entirely (e.g., the company, together with all other otherwise qualifying related organizations, goes out of business or if the company, together with all otherwise qualifying related organizations relocates completely to the United States) prior to the time of visa issuance or adjustment of status, the beneficiary will no longer be eligible for E13 immigrant visa classification.   

(2) U.S. employer must have been doing business for at least one year:  The U.S. petitioner must be actively engaged in doing business for at least one year at the time of filing of the petition.  (See 8 CFR 204.5(j)(3)(i)(D))  There is no “new office” provision for persons seeking to immigrate under the E13 category as there is for certain aliens who seek admission as L-1 nonimmigrants in order to open or be employed in a new office in the United States.  See 8 CFR 214.2(l)(3)(v).  Note that because of the “doing business” requirement, a U.S. organization may have a legal existence in the United States for more than one year, but if it has not engaged in the continuous provision of goods and services for at least one year, then the organization is ineligible to file E13 petitions.  

(D)  Multinational Executive or Manager.  Since 1990, this group, which was formerly designated under the U.S. Department of Labor’s regulations as “Schedule A Group IV,” is now a separate visa classification under section 203(b)(1)(C) of the INA.  An I-140 filed on behalf of such an executive or manager must be accompanied by a permanent job offer in a primarily managerial or executive position with a qualifying U.S. employer.  A labor certification is not required for this classification.  See section 212(a)(5)(D) of the INA; 8 CFR 204.5(j)(5).  Under 8 CFR 204.5(j)(3)(i)(A), the petition must demonstrate that the beneficiary was employed abroad by a qualifying organization for one year out of the previous three years.  Note that, unlike the L-1 nonimmigrant classification, the year of qualifying employment does not have to be “continuous.”  Compare section 101(a)(15)(L) (requiring that the alien have been employed “continuously” abroad for the one year period) with section 203(b)(1)(C) of the Act (requiring that the alien be employed overseas for “at least one year.”   

As noted, the regulations at 8 CFR 204.5(j)(3)(i)(D) require that the petitioning U.S. employer have been doing business in the United States for at least one year before filing an I-140 petition for its managers and executives (a similar provision was in Schedule A Group IV).  Also, as noted above, unlike the L-1A nonimmigrant classification, aliens seeking to enter the United States to open a new office are not eligible for the E13 immigrant classification.  The regulations at 8 CFR 204.5(j)(3)(D) specifically require that the individual be coming to an existing business in the United States.  This requirement was based in part on the pre-existing Schedule A, Group IV requirement.  It was also based on the fact that, unlike the case of an L-1 new office petition, which, under 8 CFR 214.2(l)(14)(ii), may only be extended upon a showing that the U.S. entity has been doing business for the previous year, E13 immigrant visa classification is permanent in nature; there is no  “conditional resident” status until a showing is made that the new business has in fact grown into an ongoing viable concern. 

(E) Managerial Capacity:  The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers."  See section 101(a)(44)(A)(i) and (ii) of the Act.  

As it relates to “personnel managers,” managerial capacity means an assignment within an organization in which the beneficiary primarily: 

• Manages the organization, department, subdivision, function, or component of the organization;
• Supervises and controls the work of other supervisory, professional, or managerial employees;
• Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and
• Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.   

Contrary to the common understanding of the word "manager” as any person who supervises others, the statute has a much more limited definition of the term “manager.”  Under section 101(a)(44)(A) of the Act, a first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.  See also 8 CFR 204.5(j)(4)(i)).  Further, if staffing levels are used as a factor in determining whether the alien is functioning in a managerial or executive capacity, you should not merely rely on the number of employees the beneficiary is supervising, but should look at the beneficiary’s role and function within the organization.  (8 CFR 204.5(j)(4)(ii)). 

(1) Function Managers: 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.  See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(ii).  
 

The definition of the term “manager” includes functional managers.  Section 101(a)(44)(A).  A manager may qualify for E13 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. 

As it relates to “function managers,” 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.      

See 8 CFR 204.5(j)(2). 

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.  Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). 

In applying the statute and applicable regulations to determine whether the beneficiary meets the definition of a “manager” of a function, it is useful to turn to Barron's Dictionary of Business Terms, which defines functional authority as "staff ability to initiate as well as to veto action in a given area of expertise.  Functional authority allows decisions to be implemented directly by the staff in question.  Areas where functional authority is found are accounting, labor relations, and employment testing."  A business textbook, Management for Productivity, by John R. Schermerhorn, Jr., defines functional authority as "[t]he authority to act within a specified area of expertise and in relation to the activities of other persons or units lying outside the formal chain of command."  A functional manager is defined as a "manager who has responsibility for one area of activity such as finance, marketing, production, personnel, accounting, or sales." 

An important, although not necessarily determinative, factor in determining whether an individual qualifies as a functional manager is the alien's authority to commit the company to a course of action or expenditure of funds.  Functional managers perform at a senior level in the organization and may or may not have direct supervision of other employees. 

(2) Executive Capacity:  The statutory definition of the term "executive capacity," found at section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B, focuses on a person's position within an organization.  To adjudicate an E13 petition properly, therefore, you should have a basic understanding not only of the position the beneficiary intends to fill, but also of the nature and structure of the organization itself.   

Under section 101(a)(44)(B), the term “executive capacity” means an assignment within an organization in which the employee primarily: 

• Directs the management of the organization or a major component or function of the organization;
• Establishes the goals and policies of the organization, component, or function;
• Exercises wide latitude in discretionary decision-making; and
• Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

An individual will not be deemed an executive under the statute simply because they have an executive title or because some portion of their time is spent "directing" the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the individual.  In this regard, there must be sufficient staff (e.g., contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function.  As discussed in detail below, the petitioner must also establish that the U.S. entity itself is in fact conducting business at a level that would require the services of an individual primarily engaged in executive (or managerial) functions.  In making this determination, you should consider, as appropriate, the nature of the business, including its size, its organizational structure, and the product or service it provides.   

(G) Evaluating Managerial or Executive Status:  When examining the executive or managerial capacity of the beneficiary, an adjudicator should look first to the petitioner's description of the job duties.  See 8 CFR 204.5(j)(5).  Specifics are an important indication of whether a beneficiary's duties are primarily executive or managerial in nature.  Merely repeating or paraphrasing the language of the statute or regulations does not satisfy the petitioner's burden of proof.  

If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary's job duties must demonstrate what proportion of the beneficiary's duties is managerial in nature, and what proportion is non-managerial.  A beneficiary that primarily performs non-managerial or non-executive duties will not qualify as a manager or executive under the statutory definitions.  

Beyond the petitioner’s description of the beneficiary’s proposed job duties, adjudicators should review the totality of the evidence, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, the employment and remuneration of other employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a business.  The evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an organization's structural hierarchy; in this regard, artificial tiers of subordinate employees and inflated job titles are not probative.  For smaller organizations, it may be helpful to request a description of the overall management and executive personnel structure supported by position descriptions for the managerial and executive staff-members of the organization.  For organizations that are substantial in size, it may be helpful to request comparable descriptions for the organizational unit where the alien beneficiary is to be employed.  If you believe that the facts stated in the petition are not true, and can articulate why in your denial, then that assertion may be rejected.  Section 204(b) of the Act.   

Note: If staffing levels are used to determine whether a beneficiary's job capacity is primarily "executive" or "managerial" in nature, the reasonable needs of the business enterprise in light of its overall purpose and stage of development shall be considered.  See section 101(a)(44)(C) of the Act; 8 CFR 204.5(j)(4)(ii).  However, in evaluating reasonable needs, an adjudicator should not hold a petitioner to his or her undefined and unsupported view of "common business practice" or "standard business logic."  It is the petitioner’s burden to demonstrate the company’s reasonable needs with respect to staff or the organization’s structure.   See section 101(a)(44)(C) of the Act. 

Note also:  As indicated above, a single-person office is not precluded from being classified as an multinational manager or executive for E13 purposes, provided the requisite corporate affiliation exists and all other requirements are met.  You should note, nevertheless, that it may be very difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial (or executive) function.  While a sole employee or “self-employed” person will have some managerial (or executive) duties, simply to keep the business running, he or she will normally be spending the majority of his/her work time doing the day-to-day work of the business, that is, performing the type of duties that persons who would normally be employed in the business in question would perform, were the alien not self-employed.  

 (H) Evaluating E13 petitions filed on behalf of L-1A nonimmigrants:  In some cases, you may be required to adjudicate an E13 petition that was filed on behalf of a manager or executive who was previously granted L-1A nonimmigrant classification as a nonimmigrant manager or executive.  Though the prior approval of an L-1A petition on behalf of the alien may be a relevant consideration in adjudicating the E13 petition, you are not bound by the fact that the alien was previously accorded the L-1A classification if the facts do not support approval of the E13 petition.  Eligibility as an L-1A nonimmigrant does not automatically establish eligibility under the E13 criteria for extraordinary ability; each petition is separate and independent, and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions.   

You should be aware that some courts, notwithstanding the fact that each petition must be adjudicated on its own merits, have asked USCIS to provide an explanation as to why, if the alien had previously been classified in a roughly analogous nonimmigrant category, USCIS has determined that the alien is not eligible for classification in the employment-based immigrant visa classification in question.   For this reason, where possible, it would be appropriate to provide a brief discussion, geared to the specific material facts of the underlying I-140 petition, as to why, notwithstanding the previous nonimmigrant visa petition approvals, the petitioner has failed to meet its burden to establish eligibility for approval of its I-140 petition.    

Note also:  Unlike in the case of the L-1B nonimmigrant classification, there is no provision of law that allows an individual who was/is employed in a purely specialized knowledge capacity abroad to be classified as a “specialized knowledge” E13 immigrant. However, it should be noted that some E13 beneficiaries who are classified as L-1B nonimmigrants might qualify for the E13 classification because their specialized knowledge employment abroad also would have qualified as managerial or executive employment and because the petitioners intend to employ them in managerial or executive positions on a permanent basis.