EB-1-C Multinational Executives and Managers Green Card

EB-1-C: Obtaining Permanent Residency Through Intracompany Transfer as an Executive Or Manager

Overview

The EB-1-C Immigrant visa category awards Green Cards to individuals who have been employed abroad by a qualifying entity and who are transferred to a U.S. entity in a managerial or executive capacity on a permanent basis. While it does require a U.S.-based employer (a petitioner), it is a method frequently utilized by entrepreneurs around the world. For those individuals who qualify, the EB-1-C Green Card provides a relatively straightforward path to a Green Card in a preference category that historically has no quota backlogs.  As discussed further below, many executives and managers also utilize the L-1A  nonimmigrant visa to enter the U.S. relatively quickly with their family members and then file for the EB-1-C when it is appropriate to do so.

Requirements

In order to qualify for an EB-1-C visa, an entrepreneur must:

1. Have been employed abroad for one year in the previous three years before entry into the U.S.  by  the parent, subsidiary,  or affiliate of the U.S. employer / petitioner. The key qualifications are that the entity abroad and the petitioner need to have common control, usually evidenced by >50% common ownership;
2. The employment abroad was in a managerial or executive capacity;
3. The qualifying foreign entity must continue to be doing business and have the requisite qualifying relationship with the U.S. petitioner at the time the immigrant petition is filed;
4. The intended position with the U.S. employer must be in a managerial or executive capacity; and
5. The U.S. employer must have been doing business for at least one year and have the ability to pay the immigrant’s salary.

Unlike EB-5, the EB-1-C does not require a personal investment, nor does it bestow conditional residency. The Green Card that is issued following successful immigration is unconditional.

Process

The immigrant petition (Form I-140) is filed with USCIS. If the manager/executive is already in the United States in a valid nonimmigrant status (such as L-1A, see below), Form I-485 may be concurrently filed with USCIS if visas are available. If the applicant is abroad, s/he must wait for Form I-140 to be approved before consular processing.

Premium processing is not currently available for the EB-1-C category and processing times generally vary from a few months to a year. Further, given its “doing business” requirements on both the foreign and domestic entities, it cannot be used in start-up scenarios. Individuals seeking to enter the U.S. more quickly or those establishing new companies may find it more convenient to obtain L-1A visas first and then apply for the EB-1-C once the immigrant petition can be supported.

The L-1A Visa

The L-1A nonimmigrant visa is analogous to the EB-1-C.  The requirements are quite similar in terms of the qualifying entities and employment. A few notable exceptions however include:

• The employment abroad need not be in a managerial / executive capacity but can be qualifying with a “specialized knowledge” capacity. Styling an L-1A petition this way, however, may make it difficult to obtain EB-1-C approval later;
• The L-1A may remain on foreign payroll;
• The petition may be decided with premium processing, enabling the ability to attend a visa appointment in as little as 14 days;
• The L-1A may be used to start up a U.S. entity, as discussed below.

An L-1A petition is valid for three years following approval in cases where the U.S. employer has been doing business for at least one year. Petitions may be extended in two-year increments. The maximum stay in L-1A status, subject to some exceptions, is seven years.

Spouses and dependent children of L-1 visa holders may obtain L-2 visas. Spouses may apply for work authorization, allowing them the opportunity to work in the U.S. for any entity. Children do not qualify for work authorization; however, they may attend public or private schooling without student visas until the age of 21.

Options for Start-ups

An L-1A can be utilized in conjunction with a start-up entity that has not been doing business for a full year prior to filing, which is known as a “new office” petition. This provides key opportunities for entrepreneurs who have run successful, sustained businesses abroad and now seek to open businesses in the United States.

New Office petitions tend to be more document intensive as they have additional requirements beyond those imposed upon established L-1 petitioners. Specifically, such petitions must include evidence that:

1. 1. Sufficient physical premises for the office have been secured. Usually a lease must be signed and in effect prior to filing;
   2. The L-1A beneficiary has met the one year continuous employment abroad requirement. Time spent in the U.S., even if done in conjunction with establishing the new entity under the control of the foreign employer, does not count toward qualification;
   3. The intended U.S. operations will, within one year, support an executive / managerial position. Start-up companies often have employees wearing many hats and requiring executives to perform clerical or administrative work. The new office L-1A petition allows this, however, a sufficient position must be created during the year; and
   4. Usually, comprehensive business plans are required. Such plans need to detail the foreign and domestic entities, include financial pro formas, document investments made, and the ability to pay employees. Detailed hiring plans are also helpful in such discussions.

A “new office” petition is approved for only one year. The petitioner may extend the petition for two additional years toward the seven-year limit upon showing that the entity remains active and operating and that the executive / managerial petition is sustainable.

Accordingly, many entrepreneurs that are executives or managers abroad are able to immigrate to the U.S. by establishing a new office, obtaining an L-1A visa and extension approval, and then pursuing a Green Card through the EB-1-C category.