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Frequently Asked Questions and Answers for
EB1 Multinational Executive or Manager Green Card

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Q: What is EB-1 immigrant visa petition?  

A: 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. 

Q: What is the qualifying relationship between the U.S. employer and the organization abroad?

A: 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.

Q: What is the definition of multinational

A: 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. 

Q: Who can file a petition on Form I-140 for an alien as a multinational executive or manager?

A: A United States employer may file a petition on Form I-140 for classification of an alien as a multinational executive or manager. No Labor Certification is required for this classification. The prospective employer in the United States must furnish a job offer in the form of a statement that indicates that the alien is employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties performed by the alien.

The petitioner must be either the same company that employed the alien outside the United States, or an affiliate or subsidiary of that company. The petitioner must be a U.S. employer, and it must have done business in the United States for at least one year. Multinational executives and managers require a petitioning employer, but they do not require a Labor Certification. 

Q: What are the general requirements for EB-1C immigrant visa classification?

A: 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. 

Q: What are detail requirements for multinational executives or managers?

A: 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. 

A 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:

1) 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 

2) 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; 

3) 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 

4) the U.S. employer has been doing business for at least one year.

Q: What is the Managerial Capacity?

A: 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:

1) Manages the organization, or a department, subdivision, function, or component of the organization;

2) 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;

3) 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

4) Exercises discretion over day-to-day operations of the activity or function for which the employee has authority. A first-line supervisors are not considered to be acting in the managerial capacity merely by virtue of the supervisory duties unless the employees supervised are professionals.

Q: What is the Executive Capacity?

A: The Executive Capacity means an assignment in an organization in which the employee primarily:

1) Directs the management of the organization or a major component or function of the organization;

2) Establishes goals and policies of the organization, component, or function;

3) Exercises wide latitude in discretionary decision-making; and 

4) Receives only general supervision from higher level executives, board of directors, or stockholders of the organization.

Q: What is the definition of function manager? 

A: 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.

Q: What is the process of U.S. Permanent Residency (Green Card) application in the category of EB1 Multinational Executives and Managers?

A: For an alien applicant to seek U.S. permanent residency in EB1 Multinational Executives and Managers (EB-1C) category, the following is the process:

1) The alien's employer should file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS.

2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status. An immigrant visa number is always available for EB-1C category.

3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail.

Q: What are the major advantages of EB1 Multinational Executives or Managers petition over other Green Card application options?

A: 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.

Q: I am a manager in a multinational company. Is the EB1 Multinational Executive or Manager petition difficult to get approval?

A: 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.

Q: How difficult is it to have EB1 Multinational Manager or Executive petition approved?

A: The burden of proof in EB1 Multinational Manager or Executive petition rests solely with the petitioner. The petitioner has to provide substantial evidence of the employer and the alien employee's position and duties. If an alien beneficiary is qualified, the probability of EB-1C petition success depends largely on the way the case is presented to USCIS. If the submitted evidence is relevant and well presented by the petitioner, and the argument is made persuasively, then the EB1 Multinational Manager or Executive petition should be approved routinely by USCIS.

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

A: According to USCIS, 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 Multinational Manager or Executive petition.

The immigration regulations only require that the U.S. entity must have been doing business for at least one year. Therefore, a U.S. company that has been acquired by a foreign company may file an EB-1C petition immediately, on behalf of a manager or executive who worked for the foreign company in a qualifying executive or manager capacity.

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

A: For the length of employment abroad, the USCIS permits the alien applicant to have worked for one year out of the preceding three years for the employer abroad, and USCIS regulations do not prevent the possibility of aggregating employment time during the preceding three-year period in order to attain the one-year requirement of EB1 Multinational Manager or Executive petition.

Q: What is the major requirements for employer?

A: 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.

Q: Is the company's size important for USCIS to determine a petitioner's eligibility for an EB-1C petition?

A: 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.

Q: Do we have to doing business for at least one year in U.S. prior to filing the EB-1C multinational manager or executive petition?

A: The regulation for EB-1C Multinational Manager or Executive petition states that the petitioner must establish that it has been doing business for at least one year prior to filing the Form 1-140. Also, the regulation states that 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."

If the petitioner had not been doing business for one full year, the EB-1C petition cannot be approved. A petitioner should do business in the manner and within the time prescribed by regulation in the United States, with bank records and financial documentation. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.

Q: What evidence is appropriate to submit to support an EB-1C petition

A: According to USCIS, the following evidence is appropriate to submit to prove an alien applicant's managerial or executive capacity:

1) Description of the alien beneficiary's supervisory capacity: For the alien beneficiary's supervisory capacity, a first-line supervisor is not considered to be acting in a managerial capacity by USCIS, merely by virtue of his/her supervisory duties, unless the employees supervised by the alien beneficiary are professional. Thus, the EB-1C petitioner should submit evidence of the business organization and description of the alien beneficiary's supervisory capacity. If the company 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 the staffing levels are used to determine whether an alien beneficiary is acting in a managerial or executive capacity, the reasonable needs of the organization and function should be taken into account, with the overall purpose and stage of development of the company. An alien beneficiary will not be considered to be acting in a managerial or executive capacity by USCIS, merely on the basis of the number of employees that the alien beneficiary supervises or has supervised.

3) Documentation of a job offer: No labor certification is required for EB-1C Multinational Manager or Executive petition, but the U.S. employer should submit a job offer in the form of a statement which indicates that the alien beneficiary will be employed inside U.S in a managerial or executive capacity. Such employment letter should clearly describe the duties to be performed by the alien beneficiary.

Q: What are the reasons for denying an EB-1C petition or issuing an RFE (Request for Evidence)

A: For years, the following two reasons are cited mostly by USCIS adjudicators to deny an EB1 Multinational Executives and Managers (EB-1C) petition:

1) The failure to demonstrate an ability to pay the proffered wage or salary to the alien beneficiary, and

2) The failure to demonstrate that the alien beneficiary will be employed in a managerial or executive capacity in United States.

Q: What are the important reasons for USCIS denying an EB-1C petition?

A: USCIS adjudicators will deny an EB-1C Multinational Executives and Managers petition, if the U.S. employer is unable to show that it is able to pay the wage or salary offered to the alien beneficiary. For the employer's ability to pay the proffered wage or salary, the related law states:

"Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage.  The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. "

"Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements.  In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which established the prospective employer’s ability to pay the proffered wage.  In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service."

Q: How to prove the employer's ability to pay the proffered wage or salary?

A: To prove the employer's ability to pay the proffered wage or salary, the required initial evidence should be in the form of copies of annual reports, federal tax returns, or audited financial statements. With the submitted evidence, the USCIS adjudicators will determine the employer’s ability to pay, based on if the requirements could be satisfied:

1) Net Income: the submitted evidence should indicate that the employer’s net income is equal to or greater than the proffered wage;
 
2) Net Current Assets: the submitted evidence should indicate that the employer’s net current assets are equal to or greater than the proffered wage;

3) Wage Payment: the submitted evidence should indicate that the employer not only is employing the alien beneficiary, but also has paid or currently is paying the proffered wage.

Q: What documents can be supplementary evidence for employer's ability to pay the proffered wage or salary?

A: If the required initial evidence for EB1 Multinational Executives and Managers petition does not establish the employer's ability to pay, the USCIS adjudicators may issue a Request For Evidence (RFE) notice to ask for additional evidence, or may deny the petition directly, since the petitioner has not met the burden to establish eligibility for the requested benefit for EB-1C petition. 

For some businesses and situations, the net income or net assets may not reflect the empoyer's financial status accurately, therefore may not indicate the empoyer's ability to pay. Thus, additional financial documents and different evidence may be used to demonstrate the employer's ability to pay. 

For employer's ability to pay issue, USCIS adjudicators may consider other financial documents such as profit/loss statements, bank account records, or personnel records, or USCIS adjudicators may also choose not to accept other financial documents or different calculations. 

In any case, the petitioner of EB1 Multinational Executives and Managers case should provide all financial information that may help to show the employer's ability to pay, and explain how the submitted documents may demonstrate the employer's ability to pay. A statements from the petitioner’s financial officers clearly explaining the analysis and how it proves ability to pay will help the EB-1C petition greatly.

Q: What other documents can be supplementary evidence for employer's ability to pay?

A: The petitioner for EB1 Multinational Executives and Managers can also demonstrate its ability to pay with available cash. The EB-1C petitioner can explan its corporate tax structure and accounting methods, and show the sources of ready cash that may be used to pay the alien beneficiary. The USCIS adjudicators could consider the employer's normal accounting practices, if its ability to pay is not reflected in their tax returns.

Therefore, the petitioner should convince the USCIS adjudicators that the consideration of ability to pay should be judged with totality of the circumstances, rather than a reliance solely on net income, or net current assets. But a petitioner should make a best effort to satisfy the three circumstances at the initial petition submission time, and not rely on additional financial information to demonstrate their ability to pay at the stage of Request For Evidence (RFE) response.

Q: What are the main advantages for an EB1 Multinational Executives and Managers immigrant petition?

A: 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:

1) The employer and the alien employee can avoid the Labor Certification process, which are typical to the EB-2 and EB-3 classifications, and

2) 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.

Q: Does a L-1B vids holder qualify for multinational executives and managers Under the EB1 immigrant category?

A: To qualify for a Green Card as an EB1 Multinational Executive or Manager, the foreign worker must show that he or she was employed by a company affiliated with the current U.S. employer as an executive or manager outside the U.S. for at least one year out of the three years before the transfer to the United States. 

The requirements for multinational executives and managers under the immigration first preference are similar to those for executives and managers under the L-1A non-immigrant subcategory. A non-immigrant worker under L-1A status may generally qualify under the immigration first preference category. However, there is no such equivalent of immigration first preference category for the specialized knowledge L-1B workers. 

Q: What are the specific definitions of executive capacity?

A: USCIS adjudicators could deny an EB1 Multinational Executives and Managers petition, if the alien beneficiary will not be employed in an executive or managerial capacity. The Immigration and Nationality Act has specific definitions of “executive capacity” and “managerial capacity.”
 
The executive capacity primarily focuses on a person's position within an organization. The term “executive capacity” means an assignment within an organization in which the employee primarily:

1) directs the management of the organization or a major component or function of the organization;

2) establishes the goals and policies of the organization, component, or function;

3) exercises wide latitude in discretionary decision-making; and

4) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization

For EB1 Multinational Executives and Managers classification, an alien employee will not be deemed an executive, simply because he or she has an executive title, or because he or she uses some time directing an organization as the owner or sole managerial employee. An executive should be primarily employed in the executive function, and should have sufficient staffs or contract employees to perform the petitioning organization's daily operations.

Also, the petitioner must also establish that the organization is conducting business at a level that would require the services of an individual primarily engaged in executive functions. USCIS adjudicators will consider the the nature of the business, including its size, its organizational structure, and the product or service it provides.

Q: What are the specific definitions of managerial capacity?

A: The definition of "managerial capacity" allows for both "personnel managers" and "function managers." The managerial capacity means an assignment within an organization in which the beneficiary primarily:

1) manages the organization, or a department, subdivision, function, or component of the organization;

2) 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;

3) 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

4) exercises discretion over the 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 a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional

The USCIS regulation has a limited definition of the “manager” term, which is contrary to the common understanding of the word "manager” as any person who supervises others. In the USCIS regulation, a first-line supervisor is not considered to be acting in a managerial capacity merely by doing the supervisory duties, unless the employees supervised are professional. 

Also, when determining whether the alien beneficiary is functioning in a managerial or executive capacity, USCIS adjudicators will not merely rely on the number of employees that the beneficiary is supervising, but will look at the beneficiary’s role and function within the organization.

Q: What is the definition of
Staff-Managing Manager?

A: Those persons who are in positions that are more accurately defined as junior management will be excluded for EB-1C Multinational Manager or Executive classification. Positions defined as supervisor or persons with managerial sounding titles only would not qualify. A first line supervisor is not considered to be acting in a managerial capacity, unless the employees who are being supervised are professionals. There are essentially two types of managers qualifying for EB-1C Multinational Manager or Executive classification.

The person attempting to qualify under this definition must manage at least two tiers of staff or professionals. Under this definition, a first-line supervisor is not a manager because of the supervisory duties, unless the supervised employees are professionals. 

Because the manager derives eligibility from the supervision of others, it requires that a manager must have authority to execute or recommend personnel actions. Also, a manager must exercise discretion over day-to-day operations of the function, activity or component for which he or she is responsible.

Q: What is the definition of Function Manager?

A: The definition of manager includes alien beneficiary who manages a function of the organization. A function manager does not have to be in charge of any employees, but the alien beneficiary should manage an “essential function” or operation within the organization. 

Therefore, a function manager who manages a function or component but does not have qualifying staff responsibilities must manage an "essential function". Here, the term "essential function" generally means a function that is important to achieve the company's goals. Because a function manager may not have authority to execute personnel actions, the manager must operate at a senior level within the company.

A manager may qualify for EB1 Multinational Executives and Managers classification as a functional manager, if the petitioner can show that the alien beneficiary will be primarily managing a function of an organization, even the alien beneficiary does not supervise any employees directly. A functional manager can also be defined as a "manager who has responsibility for one area of activity such as finance, marketing, production, personnel, accounting, or sales." 

A functional manager does not primarily perform tasks required in the production of a product or in the delivery of a service. Same as the staff-managing manager, a function manager must also have discretion over the day-to-day operations of the function. 

Q: For function managers, what are the managerial capacities within an organization?

A: Factors that may support functional manager status include:

  • Providing coordination and guidance to other managers;
  • Paving responsibility over assets or sales with a large dollar value;
  • Directing the work of subcontracted firms.

For “function managers,” the managerial capacity within an organization may include:

1) Manages the organization, or a department, subdivision, function, or component of the organization;

2) Manages an essential function within the organization, or a department or subdivision of the organization;

3) Functions at a senior level within the organizational hierarchy or with respect to the function managed; and

4) Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

Q: What is the first line managers?

A: It should be noted that the "essential function" should be managed by alien beneficiary, but not directly performed by the alien beneficiary.  As indicated by USCIS before that an alien employee who primarily performs the tasks necessary to produce a product or service is not considered to be employed in a managerial or executive capacity. Therefore, a manager claiming primarily directing a company's research should not performing the daily laboratory research.

For individuals who work under the supervision of a middle manager and are responsible for managing the daily activities of a group of workers, they are called "first line managers", and USCIS will not consider them as serving in a “managerial capacity”, unless the employees they supervise are professionals. Even if the employees they supervise are professionals, the position of these "first line managers" must be primarily managerial.

Q: How to Prove the Executive or Managerial Capacity for an EB1 Multinational Executives and Managers Petition?

A: To prove the alien beneficiary will serve in an executive or managerial capacity, the petitioner should show:

1) the alien beneficiary performs the high level responsibilities specified in an executive or managerial capacity; and

2) the alien beneficiary primarily performs these specified responsibilities, and does not spend a majority of time on day-to-day functions.

Therefore, the majority of the alien beneficiary’s duties must relate to operational or policy management. As USCIS noted in one case: “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. The discretionary authority and a managerial or executive title does not mean a person is employed in a managerial or executive capacity.”

Q: What activities are not considered in the managerial or executive capacity?

A: The activities not in managerial or executive capacity may include:
  • supervision of low level employees;
  • doing sales work;
  • producing products;
  • providing services;
  • operating machine;
  • supervising others producing products or providing services;
  • other involvement of company activities not related to management.
Thus, it is critical to clearly specify the job duties that the alien beneficiary will perform, and explain how these duties satisfy the definitions of executive and managerial capacity. It is also important to demonstrate that the alien beneficiary will spend the majority of time engaging in executive or managerial duties.

Q: What are the requirements of the petitioner established its ability to pay the beneficiary's proffered wage?

A: The U.S. immigration regulation at 8 C.F.R. 3 204.5(g)(2) states the following, in pertinent part:


“Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In appropriate cases, additional evidence, such as profit loss statements, bank statements, or personnel records, may be submitted by the petitioner or requested by the Service.”

As noted by the USCIS, the alien beneficiary should be remunerated at a proffered wage under an approved petition. While the petitioner is under no obligation to actually pay the proffered wage prior to the petition's approval, the petitioner must nevertheless establish that it was able to pay that wage at the time of filing.

For the petitioner's ability to pay the beneficiary's proffered wage, USCIS adjudicators will focus on the financial figures that represented the petitioner's net income and net assets at the time of filing. While the evidence may establish that the petitioner employed the beneficiary at the time of filing, USCIS will determine that if the employer did pay the beneficiary a salary that was equal to or greater than the proffered wage. Therefore as a result, there should be a facie proof of the petitioner's ability to pay the beneficiary's salary.

Q: How to consider the the petitioner's business income?

A: As an alternate means of determining the petitioner's ability to pay, USCIS adjudicators may examine the petitioner's net income figure as reflected on the federal income tax return, without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. U.S. courts held that USCIS had properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, rather than on the petitioner's gross income.

Also, in light of the petitioner's business income, the USCIS may consider the petitioner's net current assets. The net current assets are the difference between the petitioner's current assets and current liabilities. If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net current assets, and the petitioner's net current assets should not be a negative number. 

Q: How to consider the the petitioner's business income, if  foreign affiliate has supplied the financially support?

A: If the petitioner's business had been launched for a short period of time, although this factor may explain the petitioner's inability to pay the beneficiary's proffered wage, it does not excuse the petitioner from the burden of meeting the provision's requirement.

Also, in the case that petitioner's foreign affiliate has supplied and would continue to supply all the funding necessary to financially support the petitioner's business operation, the fact remains that the petitioner must establish its own ability to pay the beneficiary's proffered wage, notwithstanding the ability of the foreign entity to meet that burden. If the petitioner has failed to establish its own ability to pay the beneficiary's proffered wage, then a petition cannot be approved.

Q: What is the process of Green Card petition in the category of EB1 Multinational Executives and Managers?

A: The EB1 Multinational Manager or Executive petition process begins with the filing of the USCIS Form I-140, Immigrant Petition for Prospective Alien Worker, by the U.S. employer on behalf of the alien employee with a Service Center of the USCIS.

As an option, the alien applicant may also file concurrent Form I-485, Application to Adjust Status, if an immigrant visa number for the EB-1C category remains immediately available, which is true for most of the cases. The Form I-485 application may be approved only after the approval of the Form I-140 petition.

After the Form I-140 petition is approved by USCIS, the Form I-485 application for permanent residence can then be approved. The USCIS has an option to conduct an interview of the alien applicant, but may also waive the interview. Only after the Form I-485 approved by USCIS, the alien beneficiary's U.S. immigration status is adjusted to lawful permanent resident, and the USCIS will then issue a “Green Card", which a Form I-551, and a Resident Alien Card.

The Form I-140 petition for EB-1C Multinational Manager or Executive must prove that both the U.S. and the foreign entity are qualifying organizations. The petition should show that the alien employee has worked abroad with the same qualifying organization that will employ the alien applicant in the United States.

Q: What are the other requirements for Green Card petition in the category of EB1 Multinational Executives and Managers?

A: The petition should also show that the alien applicant worked at least one year with the organization abroad during the preceding three years in an executive or managerial capacity. It should show that the alien employee's education and training make him/her of significantly greater value than hiring a U.S. citizen for the same position.

The U.S. employer should submit the USCIS required documentation, telling the USCIS that the alien employee will work permanently in the United States as an executive or manager. A letter from the U.S. employer is required to describe both the alien applicant's prior duties abroad, and the duties to be performed in the United States. This letter should also prove that the petitioning company can meet the guidelines of a qualifying organization.

Since the USCIS is selective in its procedure of EB-1C Multinational Manager or Executive petition, an EB-1C petitioner should be prepared to know how to respond a Request For Evidence (RFE) notice from USCIS, or even how to appeal a denial.

Q: What are the alien applicant's employment requirements for EB1 Multinational Executive or Manager Petition?

A: The alien applicant should have been employed outside the U.S. in the three years preceding the EB1 Multinational Manager or Executive petition for at least one year by a same firm or corporation, and the alien applicant should be seeking to enter U.S. to continue service to that firm or organization.

The alien applicant's employment should have been outside the U.S. in a managerial or executive capacity, and with the same employer, an affiliate, or a subsidiary of the employer. 

The EB1 Multinational Manager or Executive petitioning employer should be a U.S. employer. The employer should have been doing business for at least one year, as an affiliate, a subsidiary, or as the same corporation that employed the alien applicant abroad.

Q: How USCIS evaluating the managerial or executive status?

A: When reviewing the executive or managerial capacity of the alien beneficiary, the USCIS adjudicator will examine the petitioner's description of the job duties, and will check specifics to evaluate whether an alien beneficiary's duties are primarily executive or managerial. Only repeating the regulation language in EB1 Multinational Executives and Managers classification will not satisfy the petitioner's burden of proof.

If an alien beneficiary performs non-managerial administrative or operational duties, the EB-1C petition should describe the alien beneficiary's job duties to show what proportion is managerial, and what proportion is non-managerial. A alien beneficiary that primarily performs non-managerial or non-executive duties will not qualify the EB1 Multinational Executives and Managers classification.

USCIS adjudicators will also review the totality of the evidence submitted with the EB1 Multinational Executives and Managers petition, such as the descriptions of the alien beneficiary's subordinate employees, the employer's business, the remuneration of other employees, and the alien beneficiary's actual role in the business.

For EB1 Multinational Executives and Managers petition, the submitted evidence should establish that the alien beneficiary's duties are correspond to the organization's structural hierarchy. Therefore, any artificial tiers of subordinate employees and inflated job titles are not probative for the EB-1B petition.

Q: How USCIS evaluating the managerial or executive status for small company or "reasonable business needs"?

A: For a small company, USCIS adjudicators may request a further description of the overall management and executive personnel structure, to support the company's position descriptions for the managers or executives. For a large company, USCIS adjudicators may request description for the organizational unit where the alien beneficiary is to be employed.

When evaluating whether an alien beneficiary's job capacity is primarily executive, managerial, or non-managerial, USCIS adjudicators will consider the reasonable business needs for the overall purpose and stage of business development. USCIS holds that it is the petitioner’s burden to demonstrate the company’s reasonable needs for organization’s structure and the staff structure, and USCIS will not accept the unsupported view of "common business practice" or "standard business logic" for the reasonable needs of business.

Q: What are the requirements for multinational manager or executive?

A:
The requirements for multinational manager or executive include:

1) The alien manager or executive should have been employed outside the U.S. in the 3 years preceding the petition for at least 1 year, by a multinational firm or corporation.

2) The alien manager or executive should enter the U.S. to continue service for the multinational firm or organization.

3) Outside the U.S., the employment of the alien applicant should be in a managerial or executive capacity, with the same employer, an affiliate, or a subsidiary of the employer.

4) The petitioning employer for EB1 Multinational Manager or Executive (EB-1C) must be a U.S. employer. The U.S. employer should have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the alien manager or executive abroad.

5) The U.S. employer must file USCIS Form I-140, Petition for Alien Worker.

Q: What is the major evidence that should be submitted to USCIS for an EB1 Multinational Executive or Manager petition?

A: Evidence must be submitted to support a Form I-140 Petition for Multinational Executives or Managers. Unlike the requirement for EB1 Outstanding Researcher or Professor Petition, in which alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, and unlike the EB1 Extraordinary Ability Petition, in which the alien applicant must have garnered "sustained national or international acclaim in the field of endeavor", an alien beneficiary for EB-1C petition should prove that he or she is "in executive capacity or manager capacity in U.S.", and the U.S. employer should have "the ability to pay the offered wage or salary."

Q. What are the other options, if my employer does not sponsor me for the EB1 Multinational Executive and Manager petition?

A: The EB1 Multinational Executive and Manager petition needs the alien's employer as a sponsor to file the USCIS Form I-140, and the alien employee cannot file EB-1C by himself or herself without the U.S. employer's sponsorship.

If your employer does not sponsor you for the EB1 Multinational Executive and Manager petition, you can consider the EB1 Aliens with Extraordinary Ability Petition (EB-1A) or EB2 National Interest Waiver Petition (NIW), if you can meet their regulation requirements. Both of them do not need the job offer, and therefore do not need the Labor Certification and U.S. employer's sponsorship.

Q. If my employer does not support the EB1 Multinational Executive and Manager petition, how could I file EB-1A or NIW petition by myself without the employer's sponsorship?

A: To file an EB-1A petition for alien with extraordinary ability, an alien applicant needs to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability. Also, for EB1 Extraordinary Ability applicants, they need to show a major internationally recognized award, or documentation from at least three of ten criteria of EB1A petition.

We provide Complete Do-It-Yourself Package for EB-1A green card application, which includes all knowledge you need and step-by-step procedures of EB-1A application, and it has helped many people get their green cards, and it will definitely help your EB-1A application also. Please visit http://www.greencardapply.com/ea.htm and http://www.greencardapply.com/ea/eb1a-package.htm for more information about EB-1Aapplication. 

For EB2 National Interest Waiver Green Card petition or NIW immigrant visa petition, the regular labor certification requirement is waived, and an immigration applicant can apply for an EB2 national interest waiver green card without a labor certification or a job offer from a U.S. employer. Thus, National Interest Waiver green card application has clear advantages for scholars, researchers, post doctoral research fellows, Ph.D. students, and other advanced degree professionals.

Please visit http://www.greencardapply.com/niw.htm and http://www.greencardapply.com/niw/niw_package.htm for more information about NIW application. 

Q: What are the other important issues of executive and managerial capacities?

A: The USCIS frequently focuses on the number and level of subordinate employees when evaluating if a position is managerial. If there are few or no subordinates, then EB1C petitions are routinely denied, even if the prospective immigrant is the highest level employee and responsible for an essential function. Further, the subordinates must themselves be managers, supervisors, or professionals.

Q: Who are the professionals

A: The word professional here means a worker holding a university degree. The USCIS considers professionals to be individuals with at least a baccalaureate degree who are performing jobs which require that education. Non-employee subordinates are also discounted by the USCIS, so that the direction of independent contractors or commission based staff carries little or no weight. First-line supervisors are not considered acting in a managerial capacity, unless the employees who are supervised are themselves considered professional.

Q: What is the First-line Supervisor?

A: A supervisor below the level of middle management is often called a first-line supervisor. First-line supervisors are not normally considered managers for Green Card qualifying purpose unless the employees they supervise are professionals. 

Q: Do I have to work for the foreign company before to qualify as a multinational executive or manager?

A: The language of the statute is specific in limiting to only those executives and manages who have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary.

Q: What is the meaning of affiliate?

A: There are 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 services to the U.S. partnership. 

Q: What is the meaning of subsidiary?

A: 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 that 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.

Q: Can a foreign branch office file an EB1 Multinational Executive or Manager I-140 petition?

A: While the L-1 nonimmigrant visa regulations allow for a “branch office” to petition for a manager or executive, the EB1 Multinational Executive or Manager 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. 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. 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 EB1C petition, but a foreign corporation with a branch office in the United States may not.

Q: As a Limited Liability Corporation (LLC), can we file EB1C I-140 petition for a manager?

A: 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 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 a separate entity.

Q: What is the doing business requirement for an EB1C petitioner? 

A: Doing business means the regular, systematic, and continuous provision of goods 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:

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 immigrant 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 EB-1C purposes. If the overseas foreign operations cease entirely prior to the time of visa issuance or adjustment of status, the beneficiary will no longer be eligible for EB1C 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. There is no new office provision for persons seeking to immigrate under the EB1C 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. 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 EB1C petitions.

Q: What are the applicable rules for family members?

A: If the applicant qualifies for the EB1C Green Card, his or her spouse and children under 21 will automatically qualify as well. Prior to issuing a Green Card, the U.S. government will perform a background check on the applicant and his or her family member. This background check is called either adjustment of status or consular processing, depending on whether it is performed in the U.S. or abroad.

Q: How to provide evidence to prove the ability to pay of employer?

A: The U.S. Employer must prove that it has the ability to pay the applicant at the time the Green Card application is filed AND at the time the application is approved.

The U.S. employer must provide its tax return at the time the Green Card application is filed. It may also have to provide its tax return later, while the application is being processed. The tax return must show that EITHER the U.S. employer net income (profit) OR net assets are greater than the salary offered to the applicant. In the alternative, the U.S. employer can provide evidence that the applicant is already on its payroll and already receives the wage offered in the Green Card application.

Q: I want to file Multinational Executive or Manager Green Card application. How could you Complete Do-It-Yourself Package for EB1 Multinational Executive or Manager (EB-1C) Petition help me?

A: The burden of EB-1C petition approval rests with the petitioner. The petitioner should provide substantial evidence to meet the regulation requirements of the EB-1C immigrant visa. If the alien beneficiary is qualified, then the success depends largely on the way the petition is presented to USCIS. 

To help you obtain U.S. Green Card quickly, we provide the high quality and case-proven Complete Do-It-Yourself Package for EB1 Multinational Executive or Manager (EB-1C) Petition, based on our extensive and practical employment immigration experience.

In this EB1 Multinational Executive or Manager Petition package, we provide you the methods of how to prepare the EB-1C petition, how to collect evidence, how to show your achievements, how to prove your qualification, and how to write the petition cover letter. We also provide step-by-step procedures for EB1 Multinational Executive or Manager petition, various petition strategies, detailed sample cover letters, samples of filled forms, complete petition check list, petition required forms, detailed explanations of many petition related important issues, and more. With the EB1 Multinational Executive or Manager package, you get all the information you need and the step-by-step knowledge and procedures of how to file an EB-1C petition and obtain your Green Card quickly, without the requirement of Labor Certification.

Q: What is the Request For Evidence (RFE) for an EB1 Multinational Executive or Manager Petition?

A: Simply presenting evidence which relates to the EB-1C petition requirements does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB-1C classification, the additional evidence may be requested, and it is called Request For Evidence, or RFE.

An USCIS adjudicator may issue a Request For Evidence (RFE) on EB-1C cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.

A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.

Q: My company lawyer filed my Green Card application in EB1 Multinational Executive or Manager Category. Now we got a Request For Evidence (RFE) notice from USCIS Service Center for the tough questions such as executive/manager capacity and my daily management duties. Could I get help from you for my RFE Response?

A: If you get a Request For Evidence (RFE) notice for your EB1 Multinational Executive or Manager Green Card petition from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your EB1C Green Card petition rejection.   

To help you replying the RFE, we provide the high quality and case-proven Complete Do-It-Yourself Package of Request For Evidence (RFE) for EB1 Multinational Executives or Managers (EB1C) In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB1 Multinational Executive or Manager Green Card petition, and eventually get your Green Card approval.

Please also visit http://www.greencardapply.com/rfe.htm and http://www.greencardapply.com/rfe/request-for-evidence-eb1c.htm for more information.

Q: I received a Notice of Intent to Deny for my EB1 Multinational Executive or Manager petition. What should I do?

A. The Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. 

The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.

Q: My EB1 Multinational Executive or Manager petition was denied by USCIS, What could I do?

A: If your EB-1C petition is denied by USCIS, you can file an EB-1C petition again, or file in other categories. For example, you can consider the EB1 Aliens with Extraordinary Ability Petition (EB-1A) or EB2 National Interest Waiver Petition (NIW), if you can meet their regulation requirements. 

The immigration law does not restrict the time you can file an EB-1C petition again after the rejection of your previous EB-1C application. A previous rejected EB-1C petition does not bar you from submitting another EB-1C petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.

Q: How to apply for adjustment of status by using the Form I-485 after EB-1C based Form I-140 Approval

A: USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB-1C is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.

An immigrant  visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB-1C application is current. Therefore, you can file EB-1C based Form I-140 application with Form I-485 application concurrently.

With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.

Q: How to apply for Consular Processing after EB-1C based Form I-140 Approval?

A: The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation. 

After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.

Q: I am a supervisor in a department, with 4 employees under my supervision. Do I qualify to apply for the EB1 multinational executive or manager Green Card category as a EB1 manager?

A: For EB1 multinational executive or manager immigrant application (EB-1C), a supervisor below the level of middle management is often called a first-line supervisor. The first-line supervisor is not normally considered a manager for EB-1C qualifying purposes. But an exception may exist if the employees being supervised by the alien supervisor are themselves professionals with university degrees.

Under the immigration laws, for an alien employee's job to be considered managerial, all four of the below criteria must be met:

1) manages the organization, or a department, subdivision, function, or component;

2) supervises and controls the work of other employees in supervisory, professional, or managerial positions, or manages an essential function of the organization;

3) be authorized to hire and fire the persons supervised, or if none are supervised, works at a senior level within the organization; and

4) be authorized to make decisions concerning day-to-day operations of the activities or functions of the organization over which the manager has authority.

Q: How to Effectively Organize the Evidence Accompanied with Form I-140 Petition

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 (RFE) in the instances where the required evidence described in the instructions and regulations are not initially provided. If providing photocopies of documents, provide clear legible copies.

2) 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.

3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. Include the title page and the portions that cite the alien's work. 

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. 

Q: What is the A# or A Number? We just send out the Form I-140 package to USCIS Service Center for my Green Card application. When we can get our A#, and what it is used for? Is it same as SSN? and do I need it for my employment authorization?

A: An alien applicant should have a A# after your Form I-140 immigrant visa application approval. The A Number is the Alien Registration Number. The “A” number is used by the Department of Homeland Security and USCIS for the purpose of identifying aliens.

It alone does not serve as employment authorization nor is it evidence of legal status or permanent residency. After your I-140 approval, you will be given an A number by USCIS.

Aliens are also often confused Social Security Numbers (SSN) with alien registration numbers (or “A” number) issued by the Department of Homeland Security. An alien is issued an “A” number when he or she is applying for immigration, is put under removal proceedings, or under other special alien registration programs. 

The formal “A” number contains eight digits and will occasionally begin with a “0” and have a total of 10 digits. In general, one may only have one formal “A” number. In multiple applications cases, however, an alien may receive multiple “A” numbers.

Q: My Form I-140 immigrant visa application was denied after the Request For Evidence (RFE) response to USCIS. What should I do next? Can I file a appeal of a Motion to Reopen? or file a Motion to Reconsider?

A: A Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.

If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:

    * The requested evidence was not material;
    * The required initial evidence was submitted with the petition;
    * The request for appearance or additional evidence was complied with during the allotted period, or
    * The request for evidence or appearance was not sent to the address of record.

As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.

A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.”  Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider. 

Q: I am a L-1A visa holder for 2 years, and want to apply for Green Card in the category of EB1 Multinational Executive or Manager petition (EB-1C). How difficult is it to have EB-1C petition approved? What eligibility criteria and documents should be used in the case of EB-1C Multinational Executive or Manager petitions in Form I-140?

A: The burden of proof in EB1 Multinational Executive or Manager petition (EB-1C) rests solely with the petitioner. The petitioner has to provide substantial evidence of the U.S. employer and the alien employee's position and duties. If an alien beneficiary is qualified for EB-1C petition with Form I-140, the probability of an EB-1C petition's success depends largely on the way the case is presented by the U.S. employer. If the evidence is relevant and well presented, and the argument is made persuasively, then the case should be approved routinely. 

The EB1 Multinational Executive or Manager petition should include the follow documents: 1) provide evidence and a cover letter that describes the name of the foreign employer; 2) the position offered in the U.S.; 3) the position held abroad and the years of employment as well as the date the beneficiary transferred to the U.S.; 4) state the claimed relationship between the foreign employer and the U.S. petitioner, i.e. affiliates, subsidiary, joint venture etc.; 5) provide evidence that the U.S. employer has been doing business for at least one year prior to the filing of the petition.

Q: For my EB1 Multinational Executive or Manager Green Card application (EB-1C), we received an Request For Evidence (RFE) notice from USCIS for more evidence of "the employer's ability to pay. " What documents can be supplementary evidence for the RFE response?

A: For EB1 Multinational Executive or Manager Green Card application (EB-1C), if the required initial evidence does not establish ability to pay, the USCIS adjudicator may send a Request For Evidence (RFE) notice to the petitioner for more evidence, or even deny the EB-1C petition since the petitioner has not met the burden to establish eligibility for the requested benefit.

Normally, net income and net current assets do not always accurately reflect the financial health of an organization or the employer. Therefore, according to these calculations, it may appear that the petitioner has not demonstrated an ability to pay. Thus, the use of additional financial information and different evidence may be able to demonstrate the employer's ability to pay.

The USCIS adjudicator can consider additional financial information, such as profit/loss statements, bank account records, or personnel records, but he or she may choose not to accept such information or different calculations. But it is wise to provide all financial information that may show ability to pay and to clearly explain how additional evidence other than net income and net current assets demonstrate the ability to pay.

The petitioner can have its financial officers and accountants perform such calculations in order to show that the company is able to pay the beneficiary.  Statements from the petitioner’s financial officers clearly explaining the analysis and how it proves ability to pay should then be included with the EB1 Multinational Executive or Manager Green Card application.

Q: Can I File a U.S. Green Card Application for Myself?

A: We know most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.

The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.

Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.

The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.

Q: We recently received an Request For Evidene from USCIS for our Form I-140 petition, asking for employer's evidence of "ability to pay". Does this mean that our Form I-140 may be denied?

A: The employer's "ability to pay" is a requirement for the employer filing an Form I-140 immigrant petition. The petition should  demonstrate that the U.S. employer has sufficient money to pay the offered wage for the alien applicant with the permanent of full-time position within the company. To approve an Form I-140 petition, the USCIS requires proof of the company's ability to pay the offered wage, starting with the labor certification filing date.

USCIS will deny the Form I-140 petition if the employer is failed to establish the ability to pay the offered wages. If your petition is denied due to this reason, the petitioner can file a motion to reopen the case, and try to obtain the I-140 approval if there is new evidence.

The following issues may indicate the employer's failure to establish the ability to pay the offered wages:

1) the employer's years of a negative revenue;
2) the employer's financial fluctuations were unusual, and reflect the overall ability of the company to meet its wage obligations;
3) the employer has an unusual set of setbacks in business and income;
4) the employer has a serious other conditions in the business.

Q: From a friend, I know that you provide the “Premium Petition Service Program” for EB1 and EB2 NIW petitions. Could you provide a case to help me understand how the Premium Petition Service Program will help us to file the Green Card application.

A: We provide the “Premium Petition Service Program” for EB1 and EB2 NIW petitions (http://www.greencardapply.com/general/premium.htm). Here, we provide an NIW petition example, in which the alient alpplicant used our Premium Petition Service Program to get National Interest Waive petition approval.

The EB2 National Interest Waiver (NIW) pettition enable outstanding aliens to live and work permanently in the United States, sharing their talents and expertise for the benefit of the United States. One of the features of NIW is that it allows for self-petitioning. While the EB2 National Interest Waiver can be filed by an employer, there can be advantages to self-petitioning.

In this case, the alien applicant received an NIW petition approval, and he conducts important work in the field of Alzheimer's Disease Research. He has produced groundbreaking research in the areas of progressive neurological disease, brain's inability to function, frontotemporal dementia, and Huntington's disease. As Alzheimer's disease is one of the top killers in the United States, his research is undoubtedly of substantial and intrinsic merit to U.S.

As a client of our “Premium Petition Service Program”, we helped him to prepare and provide evidence that this research has been funded by the National Institutes of Health (NIH), which is further proof that his work is of national importance. We also helped the alien applicant to submitte reference letters from hospitals and universities located throughout the United States and the world. The reference letters, including those from several independent experts, state that the alien applicant's past work is indispensable, and his future work would be detrimental to the field and to U.S.

The alien applicant is also a member of several field-related organizations, including the American Alzheimer Association, and American Brain Tumor Association. The petitioner has authored 17 publications, including journal articles and conference proceedings. He is first author on 9 articles, and his research has been presented at several international conferences. His research has been cited more than 70 times by other researchers in the field.

Q: How to apply for adjustment of status by using the Form I-485 after EB-1C based Form I-140 Approval

A: USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB-1C is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.

An immigrant  visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB-1C application is current. Therefore, you can file EB-1C based Form I-140 application with Form I-485 application concurrently.

With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.

Q: EB1C Beneficiary Must Be Employed Abroad in a Managerial or Executive Position

A: For EB1-Multinational Executive or Manager petition ( EB-1C), the petitioner must establish that the beneficiary was employed abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry to the United States as a nonimmigrant to work for the same employer.

For a EB1C case, a detailed description of job duties is the key to determine the true nature of the employment. Without the necessary information, USCIS cannot conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity.




 


More Articles for EB1 Multinational Executive or Manager Application
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Requirements of EB1 Executive or Manager Application
Executive or Managerial Capacity and Important Issues
Employer Business Relationship for EB-1C Application
EB-1C Immigration Application with L-1A Visa 
William's Answers for EB-1C Application Questions
Request For Evidence for EB1 Executive or Manager Application
Do-It-Yourself Package for EB-1C Green Card Application
EB1 Multinational Executive or Manager Green Card Application (EB-1C)
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