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EB-1, Employment-based Green Card for Multinational Managers & Executives on L1
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With the continued growth of a global economy, many companies are moving their senior personnel around the world to where they are needed the most. This includes transferring managers and executives to the U.S. to lead their company's U.S. operations. Many of these managers and executives contemplate obtaining U.S. permanent residence, a "Green Card," either to minimize the hassles associated with having to renew their nonimmigrant status or simply because they intend to remain in the U.S. and eventually become U.S. citizens. Those that are coming to the U.S. using the L-1A Intracompany Transferee Visa for managers and executives are on a direct track to qualifying for the EB-1C (Multinational Executives & Managers) employment-based Green Card. The EB-1C closely resembles the L-1A nonimmigrant visa in its basic requirements; therefore many people who qualify for an L-1A visa also qualify for EB-1C status without having to undergo the labor certification process.

While the L-1A visa provides an easier path for those interested in filing for permanent residence under the EB-1C category, L-1A status is not a prerequisite for EB-1C eligibility. Moreover, L-1A approval does not guarantee an approval of the EB-1C for the same beneficiary. Rather an approved L-1A simply indicates that the person has met the initial prima facie evidence of being qualified for an EB-1C Green Card.

Comparison of L-1A and EB-1C Requirements

The EB-1C employment-based immigrant visa and the L-1A nonimmigrant visa for multinational managers and executives share the following requirements:
  • The U.S. petitioner is a parent, subsidiary, or affiliate of a company in another country;

  • In the three-year period immediately preceding the filing of the petiton, or if the beneficiary is already in the U.S., his or her entry into the United States, the beneficiary must have worked for at least one year overseas with the parent, subsidiary, or affiliated company of the U.S. petitioner;
The main difference between the nonimmigrant and immigrant categories is that the L-1A visa allows persons who were "specialized knowledge" workers in their home country to transfer to the U.S. as managers or executives. In contrast, the EB-1C category requires that the beneficiary’s position at the qualifying overseas company was executive or managerial. In both cases the overseas managerial position had to be more than a first-line supervisor.

L-1B specialized knowledge employees generally do not qualify for EB-1C, unless the petitioner can show that the beneficiary served as an executive or a manager for the company abroad and that the position offered in the United States is "executive" or "managerial." Thus an L-1B can only qualify for the EB-1C Green Card if he/she also qualifies as a manager or executive, in addition to having specialized knowledge.

Let's look at an example of this last situation. John entered the U.S. as an L-1B with specialized engineering knowledge of a bridge building process not in common usage in the U.S. After being here for 2 years the company decided to keep him here on a permanent basis. Since he was a Project Manager in charge of specific bridge projects in New Zealand before coming to the U.S., and he was the West Coast manager for all bridge projects the company had undertaken in the U.S., he was a "manager" both overseas and in the U.S. so qualified for permanent residence under the EB-1C category.

Being and Staying in Business

One additional requirement for both the L-1A and EB-1C is that the petitioning company must be "doing business," as that term is defined by the USCIS, for at least one year abroad and in the U.S. before applying. However, under the L-1A there is a "New Office" exception to this rule, which allows the petitioner to show that the:
  1. U.S. company has secured sufficient physical premises to do business;

  2. Beneficiary meets the one-year continuous employment abroad requirement; and

  3. The newly formed U.S. company will, within one year, "support an executive or managerial position."
The New Office L-1 petition will only be approved for one year. At the end of that first year the company will need to file an extension showing that the business is active,fully operational, and requires a manager or executive. This typically involves showing that the company has expanded its U.S. revenues and has hired additional personnel. The first year for New Office L-1s is a conditional period, after which the company has to show that it is serious about being in business in the U.S. After this extension is approved, only then can the beneficiary pursue an EB-1C Green Card.

Unlike the L-1 visa, the EB-1C Green Card petition does not have an exception for companies that are launching a new office in the U.S. Instead it requires that the U.S. company have been in business for at least one year before the petition is filed. This limits the New Office L-1 beneficiary’s ability to immediately file an EB-1C petition. Those beneficiaries who have come to the U.S. to open a new office must wait until the one year has passed and the first-year extension has been approved.

In addition to the requirement that the company be in business in the United States for one year, the petitioner must also show that the company abroad will continue to operate, even after the beneficiary has been transferred to the U.S. office. This is true in both the EB-1C and the L-1 visa contexts, and is especially true when the transferee is a major force in the success of the overseas company. Under the L-1 visa category, if a company ceases to operate in the foreign country the L-1 visa status is invalidated and the beneficiary must change his status in the U.S. to another classification or leave the U.S. Under the EB-1C category, the halt of operations by the foreign company before the beneficiary obtains their Green Card would lead to USCIS revoking the underlying I-140 and denying the permanent residence application. For these reasons the continuing operation of both the foreign and U.S. offices is an ongoing requirement for both the L-1 and the EB-1C categories.

Conclusion

Qualifying for the EB-1C, Multinational Executives and Managers immigrant visa category is advantageous because no labor certification is required for the beneficiary. Labor certification is a tedious process involving several additional steps. The company is required to conduct test of the labor market through a recruitment procedure to determine if there are any minimally qualified U.S. workers that are “ready, able and willing to fill the position. Since a majority of times the position would be that of a senior manager or executive, such recruitment would neither benefit or be seriously undertaken by the company. The EB-1C category is designed for just this scenario, allowing multinational companies to transfer senior managers and executives to the U.S. with only a job offer, and without a need for the recruitment. However, qualifying for the EB-1C immigrant visa is not a simple task. As outlined in this article, obtaining a prior L-1A approval suggests that the beneficiary will likely also qualify for an EB-1C since the qualifications for the two visa categories are very similar, but it is not a guarantee. The petition preparation for this visa category is quite complex, requiring extensive analysis of the underlying facts. For these reasons, VisaPro highly recommends that anyone interested in pursuing an EB-1C consult a highly experienced attorney who has successfully handled EB-1C immigrant visa petitions in the past.

Despite the complexities of an EB-1C petition, we have successfully helped many managers and executives obtain their Green Cards through this category. We will be glad to help you with the EB-1C process if you qualify. To determine whether you have what it takes, please Register for a Consultation with one of VisaPro’s senior attorneys and we will gladly analyze your qualifications and options in detail.

Also, you can Contact VisaPro if you have questions regarding any other types of employment-based petitions. Our experienced attorneys will be happy to assist you with these as well.

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