On Sep 13 2018 by Michele G. Madera
Evaluating EB-1C Multinational Manager as an Alternative to EB-5
The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
The EB-1C Multinational Manager category is the permanent residence process for intracompany transferees, meaning the person must have spent at least one of the last three years in an executive or managerial capacity for an overseas employer and is being transferred to the U.S. to work as an executive or manager for a parent, affiliate, subsidiary, or branch office of the employer.
While this may seem fairly straightforward, these cases can be difficult. The beneficiary must be employed as a manager or executive for the entity abroad and for the U.S. company, as opposed to an owner or investor. S/he must take an active role within the company and must be able to demonstrate the oversight of personnel or a key function within the company or be an executive and be able to demonstrate this for the employment abroad and the employment in the United States. This requires detailed information about the job duties performed by the foreign national overseas and the proposed role in the United States, including how s/he functions at a senior level within the company.
If a manager of people, this would require the supervision of professional-level employees; or, ideally, management of other managers or supervisors with their own subordinate, professional-level staff. The best route is to demonstrate that there are tiers of managers: the foreign national who is overseeing managers and those managers, in turn, oversee professional level employees. By having these layers of management, it bolsters the foreign national’s credentials as manager. If a manager of a function, it is essential to demonstrate the importance of the function within the company, discretionary power to make decisions, and a substantial budget under the purview of this manager. Functional manager cases tend to be some of the most heavily scrutinized.
The company also matters. The company will need to show ongoing operations, the strength of the business, and prove that the business warrants a permanent position for this manager or executive in the United States. This cannot be a shell company that is solely created to employ the foreign national for immigration benefits; rather, there must be a legitimate business with operations in the U.S. that substantiate the need for a manager or executive. Without the staffing levels to warrant this, U.S. Citizenship and Immigration Services may find that the U.S. operations are too small to require a full-time manager or executive in the U.S.
There is a temporary visa, L-1, which tracks along the EB-1 category. The standards for the L-1 tend to be interpreted less stringently by U.S. Citizenship and Immigration Services. The L-1 can be a great option to test the waters for an EB-1C and get the person to the U.S. temporarily to start working in this managerial or executive capacity.
If a person already is employed as a manager or executive for a company overseas, but that company does not have a U.S. presence, there are two different routes to establish a U.S. business. It is possible to acquire an already existing company in the United States and take on a managerial or executive role in the United States. This is a better option than the new office L-1 option that is discussed below. This is because there are already existing U.S. operations and staff that the foreign national can take over and actively manage.
There is also an option for L-1 beneficiaries to come to the U.S. to open a new office for a company that they were employed with abroad. These can also be difficult cases and are only approved for one year initially. At the end of the one year, the company needs to prove continuing operations and the continuing need for the manager/executive. While we advise on a case by case basis, we would generally recommend waiting 2-3 years after the initial L-1 new office to start the EB-1C process, as we can use the strength of the business over the last few years (as opposed to one year) to establish the need for this manager/executive in the U.S.
There are various items to consider when weighing if EB-1C is the route to permanent residence for you. The size of the company and your role within the company have been discussed above. Another factor is your ability to speak English. We have seen Consulates question how someone can manage a team or a business if they are not fluent in English; this can be difficult to overcome. This category also allows for derivative permanent residence for spouses, as well as children under 21. If you decide to start with an L-1, your spouse and children under 21 can come to the U.S. as derivatives under L-2 status. On an L-2, your spouse is eligible to work for any employer, once employment authorization is secured; your children can go to school in the U.S. without requiring separate status in the U.S.
This blog is part of series evaluating three visa options. You can read the announcement and other blogs in the series here:
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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