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The Comparison of EB-1C Immigration  Petition with L-1A Visa and with EB-5 Investment Visa

1. The Similarities of Eligibility Requirements for L-1A Visa and EB-1C Immigration Petition The EB1 Multinational Executive and Manager category for employment-based Green Card closely resembles the L-1A visa category. Therefore, many people who qualify for an L-1A visa as an Executive or Manager would also qualify for permanent residency in the United States, without a Labor Certification application. Please note that L-1B employees with specialized knowledge are not eligible for this type of Green Card petition, unless they meet the requirements of Multinational Executive or Manager. L-1A is a nonimmigrant visa category designed for the intra-company transfer of executives and managers in multinational companies to the United States. The L-1A visa is a nonimmigrant visa which gives the visa holder temporary work authorization. However, the employment-based immigrant category of EB1-Multinational Executives and Managers (EB-1C) Green Card petition allows the same group of aliens to apply for a Green Card. It is very common for employers who sponsor their transferees for L-1A visa to later file an EB-1C petition on behalf of their transferees. The eligibility requirements for both the L-1A visa and EB-1C immigration petition are similar: 1) there must be a qualifying relationship between the U.S. petitioning company where the applicant will work and the foreign company where the applicant has worked;  2) the transferee must hold a managerial or executive level position before and after being transferred; 3) the transferee must have worked for the foreign entity continuously for at least one of the past three years.  2. The Differences between EB-1C Immigration Petition and L-1 Visa Application The L-1A visa or L-1B visa petition is for an intracompany transferee who was already an employee of the petitioner for at least one year in the prior three years, and who was and will be employed in a capacity that is managerial, or executive or involves specialized knowledge. Thus, these transferees are reliant on a specific pre-existing employer-employee relationship that must have been in existence for a minimum prescribed period of time and in a certain role. The proffered position must also qualify as one that meets specific statutory and regulatory criteria. The evidence must support specific findings of fact in order to meet the applicable criteria as stated in the law. The nonimmigrant counterpart of the EB-1C immigrant executive or manager is an L-1A intra-company executive or manager. The requirements for L-1A and EB-1C are generally similar. However, several distinct features between EB-1C and L-1A classifications must be noted: 1) Immigrant v. Non-immigrant: EB-1C is a category for immigrant classification, while L-1A is a non-immigrant category for temporary alien workers.  2) No Blanket Petition for EB-1C: The L-1A may be brought to the United States based on an individual petition or a blanket petition. An immigrant manager or executive may be sponsored only on an individual basis. There is no blanket EB-1C petition available. 3) No New Office EB-1C Petition: For an L-1A and L-1B petition, the petitioning U.S. entity may be either a company having been doing business for more than a year, or a new office having been established for less than a year. In the case of an EB-1C petition, however, the U.S. employer must have existed and done business for at least one year.  4) No Counter-Part for L-1B Visa: While an intra-company transferee may be petitioned to work as an L-1B non-immigrant worker performing duties in a specialized knowledge capacity, no such counterpart exists in the EB-1C immigrant category. To qualify as an EB-1C immigrant, the alien worker must perform managerial or executive duties in the U.S. company.  5) Prior Employment in a Specialized Knowledge Capacity abroad not Sufficient: In the L-1 category, it is possible for an intra-company transferee to have worked abroad in a qualifying organization in a specialized knowledge capacity for a year or more to be admitted to the United States in L-1B status, and eventually be changed to L-1A status after gaining experience in a managerial or executive capacity in the U.S., while this is not possible for an EB-1C beneficiary.  That is to say, the L-1A manager or executive may have worked previously abroad or in the United States for the employer as a manager, executive, or in a capacity involving specialized knowledge. In the L-1A category, all of the qualifying year of managerial or executive work may be in the United States rather than abroad, and the L-1B worker, with a year of specialized knowledge abroad, may become an L-1A manager or executive with no prior years of experience as a manager or executive abroad. This is not true in the case  for an EB-1 immigrant manager or executive. In the immigrant case, the one year work experience during the last three years before entering the United States must have been as a manager or executive. Specialized knowledge experience of one year or more abroad will not suffice for an immigrant manager or executive, even if the U.S. position is otherwise a qualifying L-1A managerial or executive one. 3. L-1A visa Is Considered to be a Necessary Precursor to Obtaining an EB-1C Approval The L-1A visa is widely considered to be a necessary precursor to obtain an EB-1C Green Card petition approval. However, it should be emphasized that, while similar, the L-1A and the EB-1C are not directly connected. The L-1A is not exactly a prerequisite for the EB-1C Green Card petition. A multinational company can file an EB-1C Green Card petition directly, provided all EB-1C requirements are met. In fact, the previous visa status of the alien beneficiary is irrelevant to the success of an EB-1C petition, and L-1A holders are not guaranteed an EB-1C approval.  In practice, a multinational company may choose L-1A visa for a permanent transferee, because of special EB-1C requirements. The EB-1C rules require that the U.S. companies have been in substantial operation for at least one year before being eligible to file EB-1C applications. To be a substantial operation, the petitioner must demonstrate an established, sound corporate structure with a reasonable number of employees and level of revenue legitimating the need for the high-level managerial or executive position.  4. The First-Line Supervisors and the EB-1C Green Card Application Generally, the EB-1C Green Card application is not for first-line supervisors. While not required, it is best for the position to be more upper-level managerial than for lower-level managers. The beneficiary generally should not be a “first-line supervisor,” meaning that the applicant’s direct reports should in turn have employees or teams reporting to them. However, every case is different. The exception to the first-line supervisor rule is if the beneficiary’s direct reports are professionals, possessing at least a bachelor’s degree. Profiles of the beneficiary’s direct reports are therefore also important, consisting of each direct report’s job title, job description, the nature of their reporting relationship to the beneficiary, and their alary and education level, backed up by copies of the reportees’ payroll and sometimes degree certificates as verification. 5. EB-1C and EB-5 Are Drastically Different Immigrant Categories Often, people confuse the EB-1C multinational transferee immigrant visa with the EB-5 entrepreneur immigrant visas, and collectively call them investment visas. It is true that in some aspects, EB-1C and EB-5 share similar features: both deal with foreign capital and investment, and often involve the creation of a new business entity in the U.S. However, EB-1C and EB-5 are drastically different categories, and inappropriate application may result in strategic disaster or practical failure of immigration petitions. EB-1C category allows international companies to transfer overseas high level managers or executives to their U.S. entities to take a permanent high-level manger or executive position. The EB-5 category is for alien individuals who have invested or are in the process of investing capital into a new commercial enterprise in the U.S. The purpose of the EB-1C visa is to allow companies to cross-fertilize and translate business practices and ideas, while the goal of the EB-5 category is to stimulate investment and enhance job creation in the United States. The nature of the EB-1C and EB-5 visas also differ in that EB-1C is designed for transfer between companies, and the EB-5 is for individuals to come to the United States to invest. This makes the qualification differences and requirement differences in terms of funding source and business design, employee position and role, and individual qualifications. 6. The Business Structure Requirements for EB-1C and EB-5 Petitions The EB-1C category requires a qualified multinational relationship between the U.S. and foreign business entities. This relationship involves a company investment from one entity to another, and examples of qualifying relationships include parent companies, satellites, and affiliates. It is used for transfer of executives between the related companies. In EB-1C, the U.S. entity is the petitioner, and the transferee alien is the beneficiary. The U.S. entity must have been substantially operating for at least one year before it can file an EB-1C petition. A temporary L-1A visa may be available for transferee aliens before the immigration EB-1C is filed. The EB-5 category is designed for an individual alien to invest into a new business in the U.S. The individual does not need to be associated with any corporation overseas. The U.S. investment may be in a variety of different forms. For this type of case, the individual investor is the petitioner and beneficiary. EB-1C would permit an owner of a business enterprise to immigrate to the United States so long as he/she would otherwise satisfy the substantive eligibility requirements. In a situation in which the prospective employee was also an owner of the business that would hire him/her, the USCIS will scrutinize the petition very closely. This category represents an important alternative to EB-5 visa. Proper planning by a qualified investor can result in issuance of a permanent residency visa without the necessity of investing substantial money in a new enterprise. 7. How to Effectively Organize the Evidence Accompanied with Form I-140 Petition based on EB-1C 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.  8. The Alien Registration Number An alien applicant should receive a A# (or A Number) from USCIS 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. 9. Date For Filing vs. Final Action Date, the Two-Tiered Visa Bulletin To provide those who are stuck in immigrant visa quota backlog with the benefits of a pending adjustment, and to reduce waiting time where possible, U.S. Department of State’s monthly visa bulletin provides "Date For Filing" and "Final Action Date" Previously, the monthly visa bulletin has served to update one date for each category of permanent residence applicant - the priority date cutoff. This one date determined whether you were eligible to submit your permanent residence application, and whether it was expected that there would be a visa number available, allowing your application to be approved. Now, the “Date for Filing” determines whether or not you can submit the final immigrant visa application, and the “Final Action Date” indicates whether or not it is expected that an immigrant visa number will be available. In many cases, the Date for Filing will be well before the Final Action Date, meaning that the alien applicants will be eligible to submit an application for permanent residence well before it is even possible for the government to approve that application. Therefore, those stuck in a backlog can get benefits of a pending adjustment - apply for a combined EAD/AP card, which provides employment and travel authorization. Immigrants holding an EAD can work for any U.S. employer, which provides significantly more security and flexibility than the employer-specific H-1B petitions that serve as the basis for many immigrant’s employment authorization. For family-based applicants, the EAD may be their first-ever work authorization in the U.S., so getting that earlier is a great benefit. Also, earlier filing of the final application means that employment-based permanent residence applicants will be eligible for AC21 portability earlier, meaning they can change employers, under certain circumstances, without being forced to re-start their permanent residence application from the beginning.

 

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