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The Definition of Executive and Managerial Capacity, and Other Important Issues

1. The EB1 Multinational Executive or Manager Petition The EB-1C Green Card category is a first-preference immigration petition, which may mean that there is currently no visa backlog for this category and priority dates are current. The EB-1C is an employment-based immigration petition designed specifically for multinational executives and managers, and must be sponsored by a U.S. employer. In order to qualify for the EB-1C, the alien applicant must have been employed outside the United States in the 3 years preceding the petition, for at least 1 year by a firm or corporation, and must be seeking to enter into the U.S to continue service to that firm or organization’s affiliated U.S. entity. Moreover, the alien’s employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the U.S. prospective employer.  The transferee’s managerial or executive duties must be at a high level that involves critical decision-making, supervising, and other job duties that are essential to the livelihood of the business.   The petitioning employer must be a U.S. employer. This employer must 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 foreigner when he or she was abroad. In addition to collecting all necessary evidence and documentation for the EB1C, the petitioner-employer must file a Form I-140, Petition for Alien Worker. The petitioner must also provide the filing fee, made payable to the U.S. Department of Homeland Security. Premium processing is not available EB-1C petition.  The EB1 Executive and Managerial application (EB-1C) should establish that the U.S. employer itself is in fact conducting business at a level that would require the services of a person primarily engaged in executive or managerial functions. In making this determination, an USCIS officer should consider the nature of the business, including its size, its organizational structure, and the product or service it provides. When examining the executive or managerial capacity of the beneficiary, an USCIS officer will look first to the petitioner's description of the job duties. Specifics are an important indication of whether a beneficiary's duties are primarily executive or managerial in nature. Merely repeating or paraphrasing the language of the statute or regulations does not satisfy the petitioner's burden of proof. If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary's job duties should demonstrate what proportion of the beneficiary's duties is managerial in nature, and what proportion is non-managerial. A beneficiary who primarily performs non-managerial or non-executive duties does not qualify EB1 Executive and Managerial application as a manager or executive under the statutory definitions. 2. The Qualifying Position for EB1 Multinational Executive or Manager Petition 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. An important requirement for EB-1C immigrant petition is that the intra-company transferee not only must have been an executive or manager in the foreign entity for at least one year within the preceding three years, but also must be positioned in the U.S. entity in a similar capacity. The EB-1C classification is a permanent immigrant status, thereby enabling the alien worker to work in the United States permanently. Concrete evidence is required in support of the duties are primarily executive or managerial in nature.  When establishing the duties of a multinational executive or manager, it is advisable to provide a breakdown of the percentage of time that the alien spends or is expected to spend on each task, in order to present a clear indication that the alien is working or will work primarily in an executive or managerial capacity. An alien worker is not considered to be acting primarily in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised. 3. The Executive or Managerial Positions The alien beneficiary must have been employed outside the U.S. for a related company for at least one year in the three years immediately preceding the transfer in a managerial or executive position, and that the employee must be coming to the U.S. company to perform work in a managerial or executive capacity.  An individual is not considered to be acting as a manager or executive merely on the basis of the number of employees that he or she supervises, directly or indirectly. The USCIS considers the reasonable needs of the organization, the overall purpose of the company and function, and the stage of development of the company in determining whether a position qualifies. First-line supervisors generally are not considered managers or executives, without other evidence of their qualifications. An executive or managerial title alone is insufficient if the beneficiary does not in fact perform duties which are primarily executive or managerial in nature. The duties of an alien can be viewed in light of the size of the organization and the number of employees. The smaller the organization, the greater the scrutiny directed at whether primarily executive or managerial positions can exist.  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.  4. The Managerial Capacity for a Multinational Manager  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 EB-1C 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. The managerial capacity for a multinational manager means an assignment in an organization in which the employee primarily manages the organization or a department, subdivision, function, or component. To be classified as a multinational manager for EB-1C immigration purposes, the intra-company transferee must: 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 supervisory duties unless the employees supervised are professional.  Staffing levels are a factor in determining whether a beneficiary is acting in a managerial capacity. However, an individual is not considered to be in a managerial capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed. Managerial capacity is determined by examining the totality of the specific tasks and responsibilities of employees.  5. The Executive Capacity for a Multinational Executive The executive capacity of a multinational executive means an assignment within an organization in which the employee primarily: 1) direct the management of the organization or a major component or function of the organization;  2) establish the goals and policies of the organization, component, or function;  3) exercise wide latitude in discretionary decision-making; and  4) receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. Staffing levels, proportionate to the reasonable needs and development of the entity, are a factor in determining whether a beneficiary is acting in an executive capacity. However, an individual shall not be considered to be acting in an executive capacity merely on the basis of the number of employees that the individual supervises or has supervised, or directs or has directed. 6. Other Important Issues for Executive and Managerial Capacity The EB1 Multinational Executives and Managers immigration category clearly creates opportunities for certain executives and managers of multinational companies to establish permanent residence in the United States.  Even executives and managers of companies without existing subsidiaries in the U.S. may be able to take advantage of this category, by first establishing U.S. subsidiaries under L-1A status and then applying for the EB1C status once their subsidiary has been in business for the required one year period. The definitions of managerial capacity and executive capacity include management of a function, and the beneficiary needs not to directly manage other personnel. If staffing levels are used as a factor, the reasonable needs of the organization, component or function, in light of the overall purpose and stage of development thereof, must be taken into account. With regard to the length of employment abroad, the USCIS permits the foreign person to have worked for one year out of the preceding three years for the employer abroad, and the regulations do not foreclose the possibility of aggregating employment time during the preceding three-year period in order to attain the one-year requirement. 7. Consideration of Two Types of Managers - the Staff-Managing Manager and the function Manager 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. 1) The staff-managing manager: 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. 2) The function manager: A person who manages a function or component but does not have qualifying staff responsibilities must manage an "essential function". Direct management of employees is not required, if an alien manages an "essential function" of the organization. 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 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. Factors that may support functional manager status include: • providing coordination and guidance to other managers; • having responsibility over assets or sales with a large dollar value;  • directing the work of subcontracted firms. In one EB-1C petition case, USCIS held that a chef of a food service company could not qualify as a "functional manager" for EB-1C Multinational Manager or Executive petition. The EB-1C petitioner assumed that managing food service is an "essential function" for the alien beneficiary, but the petitioner failed to establish that managing food service in one store qualifies as "managing an essential function, department, subdivision, or component of the organization as a whole." 8. The Supervisor's Qualification for EB1 Multinational Executive or Manager Green Card Application For EB1 Multinational Executive or Manager immigration 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. 9. Consideration of Single-Person Office or Self-Employed Person For EB1 Multinational Executives and Managers petition, a single-person office is not precluded from being classified as a multinational manager or executive, if the required corporate affiliation exists and all other EB-1C requirements can be met. But it could be difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial or executive capacity. While a sole employee or self-employed alien may have some managerial or executive duties, the alien will normally spend the majority of work time doing the day-to-day work of the business to keep the business running. 10. Employer's Ability to Pay for EB1 Multinational Executive or Manager Petition 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. 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. 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. 11. How USCIS Evaluating the Managerial or Executive Status 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. 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. Question: I have a L1A visa and working as a group manager. Do I qualify for EB-1C multi-national executive and manager green card application for the requirement of managerial capacity? Answer: The managerial capacity for EB-1C multi-national executive and manager green card application is determined by examining the totality of an employee's specific tasks and responsibilities. An executive or managerial title alone is insufficient if the beneficiary does not in fact perform duties which are primarily executive or managerial in nature. An EB-1C applicant's managerial capacity can also be viewed according to the organization and the number of employees. The smaller the organization, the greater the scrutiny directed by USCIS officers at whether primarily executive or managerial positions can exist. Also, staffing levels and proportionate to the reasonable needs and development of the entity are factors in determining whether a EB-1C applicant is acting in a managerial capacity. However, an individual is not considered to be in a managerial capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed. While not required, the attainment of a college degree by the alien serves as a beneficial factor. Direct or indirect supervision of degreed professionals by the alien also serves as a very positive factor. 12. The Processing Time for EB1 Green Card Application The EB-1 is the most prestigious employment-based U.S. green card application category. Its main advantage lies in the fact that the waiting time is usually much shorter than that of other green card application categories. The first preference category is broken down into three subcategories: EB-1A for foreign nationals who can demonstrate that they have extraordinary ability; EB-1B for outstanding researchers and professors; and EB-1C for multinational executives and managers. The processing time for all three of these subcategories is not the same. Based on the alien's eligibility, the approval process time may take more or less time. The processing time to obtain an EB-1 Green Card typically depends on the applicant’s ability to complete the required documentation accurately. The error in an application may extend EB-1 processing time. The processing time also depends on how quickly the USCIS is able to process the applicantion. The following is an outline of EB-1 processing times: Filing times vary based on whether the applicant shall be filing regular application, or whether the applicant will be requesting premium processing. On average, the Nebraska Service Center (NSC) and the Texas Service Center (TSC) have similar processing times; however, the NSC is known for delayed processing times. Unfortunately, applicants cannot choose service centers as USCIS has predetermined processing locations dependent on the applicant’s intended state of employment and the jurisdiction of the service centers. The USCIS reports the most current EB-1 processing times. Generally, the USCIS processing time for the EB-1 immigrant visa is about 4-6 months. Once the EB-1 has been approved, the USCIS may take about 3-5 months to issue permanent residence (Green Card). The processing time is only available if the EB-1 category is current. Applicants can check category status at the DOS Visa Bulletin. If the EB-1 category is not current, there will be an extended amount of time to receive approval.  If the applicant incurs any delays with applications or misfiling, the process time will be prolonged. USCIS Case status checks are available online, which provides applicants a better determinant for case-specific processing.

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