The EB-1C Visa, as an immigrant visa based on employment petition for permanent residence, permits a foreign multinational business entity to relocate multinational executives and managers, who have worked abroad for its affiliated foreign offices for at least one year of the three years prior to the filing of EB-1C petition, to its U.S. affiliate in a managerial or executive capacity. The spouse and children under age of 21 of the EB-1C holder are eligible for permanent residence accordingly.
The EB-1 Green Card Program is subjected to a numerical quota limitation, which is 40,000 visas per year and would be allocated among petitioning countries. Such limitation includes both the multinational executives, managers and their dependents (spouses and children under the age of 21).
To qualify for EB-1C, the employer must demonstrate that:
The executives or managers, who have continuously worked for a business entity abroad for at least one year in the past three years prior to EB-1C Visa petition with the purpose of immigrant and transfer to the U.S. affiliate may qualify for the EB-1C Visa.
Qualifying petitioners for EB-1C include commercial corporation, nonprofit, religious, charitable organization, educational institution, etc., provided a qualifying relationship between the foreign business entity and the U.S. petitioning business entity can be shown. Business entities with certain relationship of ownership and control existed between would be considered having a qualifying relationship, including a parent company, a subsidiary, a branch, or an affiliate. Ownership refers to the legal right of possession with full power and authority to control, while control means the right and authority to direct the management and operations of the business entity. In the case of transferring executives or managers to existing U.S. affiliate, the U.S. petitioning business entity may present the authorized official’s statements demonstrating the ownership and control structure and other supporting documentation such as the business entity’s financial statements, annual reports, tax returns, etc., to prove its qualifying relationship.
Although L-1A Visa and EB-1C Visa shares similar requirements while no exception of transferring for the purpose of establishing a new U.S. affiliate is granted for the EB-1C Visa petition. Instead, the U.S. petitioning business entity must have been “doing business” for at least one year prior to the EB-1C petition.
The U.S. petitioning business entity must show the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad to meet this requirement. Business entity who intends to transfer executives or managers for purpose of establishing a new U.S. affiliate may only seek for the L-1A Visa first until the U.S. affiliate has existed for at least one year.
The beneficiaries of the EB-1C Visa must be in full-time executive or managerial capacity of the foreign business entity and the U.S. petitioning business entity. The USCIS would review beneficiaries’ comprehensive job duties pursuant to the following standards:
First of all, the executive capacity stands for the ability of the employee to primarily (i) directs the management of the organization or a major component or function of the organization, (ii) establishes the goals and policies of the organization, component, or function, (iii) exercises wide latitude in discretionary decision-making, or (iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. The employees with executive capacity may make decisions of wide latitude without much oversight. Noted that employees who directly perform a function in the organization without subordinate staffs would more likely be deemed as staff officers, specialists, or employees with specialized knowledge rather than executives and thus not qualify for EB-1C.
On the other hand, managerial capacity generally is defined to the ability of the employee to primarily (i) manage the organization, or a department, subdivision, function, or component of the organization, (ii) supervises and controls the work of other professional employees, (iii) manage an essential function of the organization at a high level, without direct supervision of others, (iv) possesses the authority to make personnel actions or functions at a senior level within the organizational hierarchy or with respect to the function managed, or (v) exercises discretion over the day-to-day operations of the activity or function. Both personnel manager, who primarily supervise and control the work of other supervisory, professional, or managerial employees, and function managers, who primarily manage an “essential function” within the organization, qualify for the EB-1C Visa.
Qualified executives, managers and their dependents would be granted permanent Green Card after adjusting status, or obtaining visas and entering into the United States without conditions. Permanent Green Cards remain valid for ten years and may be renewed without conditions by filing the I-90, Application to Replace Permanent Resident Card form.
The investors’ spouses and children under the age of 21 are eligible to receive permanent residency under the EB-1C Immigrant Program to accompany or follow the executives or managers. However, the Common Law marriage is not acceptable and a derivative beneficiary relationship would not be recognized accordingly.