Dr. William:

I am currently in US with my wife. I came to U.S. 5 years ago on H-1B and remained on H-1B for 4 years, and then transferred to L1A as a manager last year. My company processed my I-140 application under EB1 category last year, and I got request for evidence (RFE) this week. 

The RFE asks a lot of documents in terms of my role and my organization chart when I was in my home country. The RFE also asks my current role, organization chart, job responsibilities, and my previous H-1B visa. As a previous H-1B visa holder, do you think I can get I-140 approval as EB1 manager? I shall appreciate your experience and advise.

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Answer:

It looks like you do not meet the requirement of EB1 executive/manager (EB-1C), even you have the L-1A status now. There are two types of people who are currently in L-1A visa status in the U.S. One is those who were granted a L-1A status from the beginning, because of their executive or managerial experience at least for one year with the foreign parent or subsidiary or affiliate company. These L-1A holders can apply for I-140 Green Card application in the EB-1C category, without a Labor Certification.

The second group is those who did not meet the L-1A visa requirement at the time they first came to the U.S. but because of the promotion to an executive or a managerial position for six or months in the U.S. parent or subsidiary or affiliate company, they were allowed to change status to L-1A. But these L-1A holders can not apply for I-140 Green Card application in the EB-1C category, and may need to apply for the Labor Certification first.