Multinational Executives & Managers (Intra-Company Transferees)
[EB-1 Priority Worker Permanent Residency Petition]
A multinational manager or executive is eligible for priority worker status if he or she has been employed outside the U.S. in the three years preceding the petition for at least one year by a firm or corporation and seeks to enter the U.S to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate subsidiary of the employer.
The petitioner must be a U.S. employer, doing business for at least one year, that is an affiliate, a subsidiary, or the same employer as the firm, corporation or other legal entity that employed the foreign national abroad.
a) Can file I-140 alone or concurrently with I-485
b) Premium Processing is not available
c) Self-petitioning is not permitted
d) Need not be in L-1 status to apply; H holder may also be eligible for the category
Multinational executives and managers are exempt from the usual Labor Certification requirement when seeking employment-based Permanent Residency under this category, but a job offer is required.
The Manager/Executive must have been employed for one (1) year, in the last three (3) years, by a petitioner that is a “firm or corporation or other legal entity or an affiliate or subsidiary thereof”. The US employer must have been actively “doing business” for one (1) year. If foreign entity stops operating prior to visa appointment, the person is ineligible for status. However, USCIS takes the view that absent revocation of the I-140, it is not grounds to deny A/S “solely because the overseas subsidiary or affiliates ceased operations after the I-140 was approved but prior to the 245 interview.” The petitioner must establish that it is not merely a shelf corporation, but is active, conducting substantial business, and truly needs an executive or manager.
Affiliates include entities owned and controlled by the same group of individuals, in approximately the same share or proportion of each entity. Certain, industry-specific incidences are further described in Kurzban’s (p. 716, Section D, subgroup A).
Subsidiaries can be joint ventures if there is equal control and veto power; or can be less than one-half ownership if there is control in fact.
The One-Year Requirement may be met even if person is in the U.S. for more than 3 years, if s/he is working for same employer, affiliate, or subsidiary in U.S., and was employed for at least 1 of the last 3 years by company abroad before entering in valid nonimmigrant status.
The Manager/Executive who seeks to enter the U.S. in order to continue to render services to the same employer, or to a subsidiary or affiliate thereof must do so, in a capacity that is managerial or executive.
*Unlike the L-1 applicant, cannot be a specialized knowledge worker abroad; s/he must establish work as a manager/executive to be eligible. If petitioner is seeking to assert that the beneficiary is a manager performing an essential function, it must still provide sufficient evidence that the beneficiary is working “primarily” as a manager.
Managerial and Executive Capacities are defined as follows:
Executive Capacity is an assignment with the organization in which the employee primarily:
i. Directs the management of the organization or a component/function;
ii. Establishes goals and policies;
iii. Exercises wide latitude in discretionary decision making; and
v. Receives only general supervision or direction from higher level executives, board of directors, or stockholder.
Managerial Capacity is an assignment with the organization in which the employee personally:
i. Manages the organization, department, subdivision, function, or component;
ii. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
iii. Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and
iv. Exercises discretion over day-to-day operations of the activity or function
First Line Supervisors are not considered managers unless the employees they supervise are professional. Even if the employees are professionals, the position must be primarily managerial.
A Functional Manager need not oversee any employees but must manage “an essential function” or operation within the organization. A Functional Manager must have decision making authority over some definable aspect of the business of the company that must be articulated to clearly identify the importance of what s/he does, and why what s/he does contributes to the success of a product or benefits a business area.
We would require authorization from your company to initiate the process. Once authorized we would conduct a telephonic review to assess what additional information we may need from you/your employer to prepare a draft and suggest a time line for completion of the actual petition(s) and application(s). We will prepare and send to you the draft of the I-140 Support Letter for review and approval. Once approved, we will then send it to your manager/HR representative for signature (for return to us prior to filing).
While we are awaiting those I-140 materials, we will send to you, for completion by you and any dependents applying with you, the documents necessary to obtain medical examinations and photographs and to apply for permanent residence (the I-485), which will be filed concurrently with the I-140 (Category One Intra-company Transferee) portion of the case.
It generally takes 30-90 days to complete the document drafting, assembling and processing necessary to file, at which time we should be able to submit the petition to USCIS. Provided there is no category backlog at USCIS, or issuance by USCIS of a Request for Additional processing by USCIS will occur within 4-12 months.
An immigrant seeking to gain permanent residency as an EB 1-3 recipient must demonstrate that the position sought will be in an executive or managerial capacity.
To be considered a position with executive capacity, the position holder must:
- Manage an organization or major component,
- Have authority to make, police and establish goals,
- Have discretionary decision-making authority, and
- Be subject to only general supervision from higher executive, the board of directors, or stockholders.
To be considered a position with managerial capacity, the position holder must:
- Manage an organization or department,
- Supervise and control other managers or professional level personnel,
- Have authority to make personnel decisions, and
- Have discretion to make decisions about operations.
A USCIS Form I-140 (Petition for Alien Worker) is required. All I-140 petitions must be filed at the USCIS Regional Service Center that has jurisdiction over the place where the individual will work. No labor certification is needed for EB-1 petitions