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When applying to become a permanent resident in the United States via employment-based immigration, applicants are sorted into five distinct preference categories. The EB-1 preference classification constitutes the group of highest preference employment-based visas reserved for immigrants who are extraordinarily accomplished in their respective fields of business, sciences, education, arts or sports.
Qualifying for the EB-1 visa program provides a significant advantage over others who are immigrating from one’s same country for employment purposes. Despite existing restrictions that may cause visa wait times of over a decade for certain applicants in other preference classifications, the EB-1 visa category is usually ‘current,’ meaning that visas are available to applicants soon after their immigration petition is approved.
Another notable advantage of the EB-1 visa is that the immigrant visa petition may be filed, and the visa obtained without requiring the additional time consuming and often uncertain Labor Certification requirement.
The EB-1 preference classification has three distinct categories: EB-1A for aliens of extraordinary ability; EB-1B for outstanding researchers and professors in academia; and EB-1C for managers and executives transferring from a foreign company to work for an affiliate in the United States. This article will focus on the EB-1C visa eligibility, requirements and application process available to employers who wish to bring senior level employees from their foreign affiliates to work in the United States. (8 CFR § 204.5)
There are thousands of multinational corporations (MNCs) around the globe, and only approximately 30% are headquartered in the United States. Many others are headquartered in Europe, Latin America, Australia, India, China and in other countries throughout Asia. These foreign-based companies do business in the United States and often have a business need to bring their executives, managers, and other senior staff to the United States to assist with their business interests. At the same time, domestic-based MNCs also have legitimate business interests in bringing talented executives who work in their foreign subsidiaries and affiliates to the United States.
While most EB-1C sponsoring employers are large MNCs, the EB-1C visa is also an expedient way for a foreign company to expand its business activities into the United States. As foreign companies open their outposts in the United States, they often need experienced executives who are well versed in their business models and can assure that the newly formed U.S. branch or subsidiary reflects the best practices of the parent firm.
The EB-1C visa provides large MNCs and companies that are just beginning their operations in the United States with the opportunity to bring executives and managers into the country relatively quickly and in a manner that allows them to remain in the United States permanently by obtaining permanent resident status. Although the green card may lead to a U.S. citizenship, the incentive for many of those seeking the EB-1C visa is to minimize the risks and uncertainty involved in periodically having to renew temporary work visas, preferring the stability of a permanent resident status.
To utilize the EB-1C immigration visa, the sponsoring employer and the foreign national who is seeking to relocate to the United States must meet certain very prescriptive requirements.
The EB-1C sponsoring organization must operate in the United States and have business activities in one or several other foreign countries, where the visa applying foreign national worked (works) prior to the transfer to the United States. The foreign affiliate of the sponsoring organization must have a bona fide commercial activity, which regulations define as “regular, systematic, and continuous provision of goods and/or services” and must be a part of the same group of companies as the sponsoring organization (see, below in section on “qualifying relationship” how the U.S. employer and its foreign affiliate must related to each other to meet EB-1C qualifications). Finally, to act as a sponsoring organization for the EB-1C visa process, the company must have operated in the United States for at least a year.
To be eligible for permanent residency immigration status under the EB-1C visa regime, the foreign national must have been employed by the foreign affiliate of the sponsoring organization for at least one year within the past three years prior to the filing of the immigrant visa petition; and must have had a managerial or executive role in that employment. Further, the foreign national’s expected role with the sponsoring organization must also be in the managerial or executive capacity.
Relevant regulations define a ‘manager’ for EB-1C visa application purposes as an employee who personally oversees the activities of an group, department, or a subdivision within the company; and supervises the work of others who are managers, professionals, skilled and unskilled employees; has discretion to exercise authority over the day to day operations of his/her department or subdivision and employees under his supervision, including hiring and firing responsibilities, setting priorities and deadlines, and making compensation decisions. Management of only unskilled staff is not sufficient to qualify as a ‘manager’ for EB-1C visa purposes.
For EB-1C visa application purposes, an “executive” is defined as a senior level employee who directs major operational divisions of the company or its essential corporate function; sets budgets, goals and strategy, and has broad decision making discretion for the organization that he/she leads; collaborates broadly with his/her peers on the enterprise-wide strategy; needs only general and reports to the organization’s chief executive, chief financial officer, the board of directors, or the company’s stockholders.
There are two ways to seek U.S. permanent residency status via the EB-1C visa application process:
First, if a foreign national is already working in the United States under a non-immigrant visa status (e.g. L-1A visa), he/she may apply for adjustment of status, once his/her EB-1C immigration visa petition sponsored by a U.S. employer has been approved. The sponsoring employer would petition for an EB-1C visa on behalf of the foreign national employee, by establishing that the sponsoring organization and the employee meet the EB-1C eligibility requirements; that the sponsoring employer is providing a permanent full-time position for the employer and has the financial wherewithal to pay the foreign national for the role.
Second, foreign executives and managers who are working outside of the United States, can apply for their EB-1C immigration visa status abroad through immigrant visa processing. The U.S. sponsoring organization would undertake the same application steps whether the foreign national is based in the United States or abroad. The use of immigrant visa processing method for the EB-1C visa application is known to take longer and the petitioner’s application may be subject to greater scrutiny by consular officers.
To qualify as a sponsoring organization for EB-1C purposes, the U.S. employer must be able to prove a specific affiliation – a qualifying relationship -- with the foreign employer of the EB-1C beneficiary. When determining whether the U.S. employer and the foreign affiliate have a ‘qualifying relationship’ for EB-1C petition purposes, the U.S. Citizenship and Immigration Services (USCIS) considers two related concepts: common ownership and effective control. While ‘ownership’ refers to the right of possession and the power over the legal entity, the ‘control’ refers to the unbridled authority to direct and manage the operations of the business.
The relevant regulations recognize that parent companies, subsidiary companies, branches, and affiliate have a ‘qualifying relationship” for EB-1C eligibility purposes.
When one company owns (directly or through other entities) more than 50% of the overall equity interest in another company, the majority owner is a parent company of the other company, and the other company is a subsidiary of the owner. The company that is owned 50/50 by two different owners may have a qualifying relationship, as a subsidiary, with both owners, as long as each owner controls 50% of the business and has the veto power over the decisions of the other. A company may also have a qualifying relationship, as a subsidiary, with a holder of less than 50% interest, if other equity holders are disbursed and the largest holder has control and the veto power over business decisions. For EB-1C petition purposes, the sponsoring organization may be either a parent or a subsidiary of the foreign employer of the EB-1C beneficiary foreign national.
A branch is an operating division of the company in another location. Because a company can have many branches in different countries, being able to transfer executives and managers between these different parts of the business is important to maintain business culture, product and service quality, and brand standards.
For EB-1C qualified relationship purposes, a U.S. sponsoring organization and a foreign employer may be deemed affiliates when they are ‘sibling’ subsidiaries owned (directly or indirectly) by the same parent company, or are organizations that are owned by the same group of companies or individuals where all owners have similar control across different companies.
To meet the EB-1C qualification requirements, the sponsoring organization must include evidence that it and the foreign employer of the EB-1C beneficiary meet these ‘qualifying relationship’ requirements in the application. See the section on EB-1C Application Process and Supporting Documentation for additional information.
If the sponsoring employer and the foreign national employee meet the EB-1C eligibility requirements, the EB-1C application process proceeds as follows:
First, the employer must extend an offer of employment to the employee to work for a U.S. company on a full-time permanent basis, in a managerial or an executive role that meets EB-1C requirements. Then, the employer must file the EB-1C petition on Form I-140 at the appropriate USCIS center. It is the responsibility of the sponsoring employer to attest that the foreign national is eligible for the EB-1C qualifications and to provide supporting evidence of such eligibility.
Once the petition has been approved and the ‘priority date’ for the application has been reached, the foreign national is ready to file for adjustment of status or immigrant visa processing, whichever they prefer.
As part of its sponsorship of the EB-1C immigration visa petition for a foreign national, the sponsoring U.S. employer must provide extensive documentation. In support of the EB-1C petitions application, the sponsoring employer must collect and file extensive documentation. Since MNCs have access to in-house extensive administrative functions (including in-house lawyers and accountants), they would have the necessary resources to collect and prepare the required documentation, the branches or subsidiaries of smaller foreign companies, however, would have to commit substantial time and effort to assemble the required documentation:
- The Immigration Petition for Alien Workers (on Form I-140).
- A corporate EB-1C petition support letter from an authorized representative of the U.S. employer (usually an officer), attesting that the foreign national will be working for the U.S. company as a manager or an executive as required by the EB-1C eligibility rules.
- Job description for the transferring foreign national that includes a details about the role, its qualifications and responsibilities, and the reporting relationship between the applicant and the leadership team of the U.S. company, i.e. how he/she fits in the leadership structure.
-Documentary evidence of a valid ‘qualifying relationship’ between the United States EB-1C sponsor and the foreign entity where the foreign national is/was employed prior to transfer.
o If the sponsoring employer is a well-known large company (e.g. a publicly listed company or a widely known brand), the company can provide a statement by a corporate secretary or another senor level executive outlining the different companies in the company group, including the ownership structure of the U.S. sponsoring organization and the foreign affiliate, their business dependencies and intercompany transactions. The documentation should also include the parent company’s or the sponsoring organization’s annual report, the U.S. Securities and Exchange Commission filings or other publicly available and verifiable documents that would listing the parent company and its subsidiaries.
o If the sponsoring organization is a smaller, less known company, then its qualifying relationship supporting documentation may have to be more extensive. In addition to the statement from an authorized representative (an officer) about the ownership and control relationship between the U.S. sponsoring organization and the foreign affiliate, additional required documentation may include
The U.S. company’s articles of incorporation; its license to do business and its certificate of good standing;
o If the foreign employer is transferring the foreign executive to the United States for purposes of organizational expansion into the U.S., then in addition to qualifying relationship documentation listed for smaller companies above, the sponsoring organization must also provide an attestation of financial viability, such as evidence of adequate capitalization and ability to pay the executive’s wages.
The sponsoring organization must also provide the following documentation on behalf of the foreign national whom it is supporting in the EB-1C immigration visa petition application process:
As part of the EB-1C petition process, the authorized representative of the sponsoring employer must provide an attestation, under penalty of perjury and to the best of his/her knowledge, that the EB-1C application petition and its supporting documentation include accurate information and fulfill the EB-1C visa requirements.
In reviewing the EB-1C petition and the supporting documentation, the USCIS may require further evidence, cross-collaborating the facts provided in the EB-1C petition. The USCIS may request to interview the foreign national on whose behalf the EB-1C is petition is being filed to explore and scrutinize the relationship between the U.S. and the foreign company and the applicant’s role before and after transfer to the United States. It can also use the conduct its own independent investigation of the sponsoring organization, its foreign affiliate, and the EB-1C visa applicant using domestic and international law enforcement tools. It can also undertake an independent background and security check for the foreign national worker to verify the his/her identity and credentials, testing the reasons for the visa applicant’s desire to immigrate to the United States.
While most MNCs and other larger companies can handle collecting EB-1C documentation and the related USCIS review process utilizing their in-house staff, smaller companies may benefit from advice and assistance in the process from immigration counsel experienced with EB-1C procedures.
When the employee’s immigrant visa petition has been approved and the priority date is current, the foreign national is ready to take the next step in the permanent residence application process through one of two ways to advance their visa application. Those who are seeking permanent residence while working in the United States on a nonimmigrant visa (e.g. L-1 or E-2), will likely pursue adjustment of status. Those who are seeking permanent residence while working outside of the United States will typically pursue immigrant visa processing.
These are not strict requirements, but are the norm — those living abroad may equally pursue adjustment of status, just as those living in the United States may pursue immigrant visa processing, each individual circumstance is different and foreign nationals should research both options to determine which is best for them.
There is a limit of 140,000 available immigrant visas per fiscal year in the United States, regardless of whether the status is conferred via immigrant visa processing or adjustment of status (AILA.2.1). 40,000 of these immigration visas are reserved for the so-called first preference employment based EB-1 visas. Spouses and children of foreign nationals who seek immigrant visas in conjunction with the primary applicant (otherwise known as “derivative applicants”) count toward the quota numbers (AILA.2.1). The United States Department of State that oversees the process further stipulates that the number of immigrant visas approved in any quarter of the fiscal year may not exceed 27% of the annual quota, or a maximum of 37,800 immigrant visas conferred per quarter (AILA.2.2).
The annual visa quotas also include a per-country limitation, where only seven percent of all immigrant visas, a maximum of 9,800 per year, may go to applicants from any given country (AILA.2.3). It should be noted that this is not the number of visas any given country is entitled to, but rather the absolute maximum the applicants from each country may receive in any given year (AILA.2.4). Further, once immigration visas are granted they are “charged” to the country in which the visa recipient was born, and not the country where they held citizenship when the immigration visa was granted, if different (AILA.3.6).
The Department of State maintains that the current practice of per-country limitation is nondiscriminatory, but from an objective standpoint, applicants born in China, India, Mexico, and the Philippines face significantly longer wait times than applicants from other countries (AILA.3.3).
In addition to the worldwide quota and per-country limitation, the United States utilizes a ranked preference system for employment-based visas, with each receiving a set percentage of immigrant visas. The preference system exists as follows:
In a given quarter, if immigrant visas from one or more categories are underutilized, unused visas can be transferred down from the priority line from EB-1 to EB-2 or from EB-2 to EB-3, or EB-4 and EB-5 up to E-1 and subsequently down to EB-2 and EB-3 respectively (AILA.4.3). As a result, higher demand in the higher preference categories ultimately affects the number of immigrant visas available for lower preference categories (AILA.4.3).
In determining the order of petition-approved applicants to receive an immigrant visa, a system of “priority dates” is used to effectively place an applicant in line (AILA.6.3). The foreign national’s priority date is the same as the filing receipt date of their immigrant visa petition, and it determines their place in the queue relative to other applicants charged to the same country and in the same preference level (AILA.6.4). The earlier their priority date, the sooner their priority date will be “current”, at which point the foreign national can begin the next steps for immigrant visa processing (AILA.6.4).
A category is regarded to be “current” when the availability of immigrant visas exceeds the present demand, and thus there is no waiting period (AILA.6.5). For example: Say there are 20,000 (EB-2) applicants worldwide when there are 40,040 (EB-2) immigrant visas available. Typically, the (EB-1), (EB-2), and (EB-3) preference levels remain current, except for individuals charged to China and India (AILA.7.5). When a country is oversubscribed (i.e. that the number of immigrant visa applicants exceeds the per-country limitation), a cut-off date is established and foreign nationals are placed on a visa waiting list based on their priority date (AILA.7.3).
The United States Department of State publishes two charts as part of the Visa Bulletin on the Department of State website: the Dates for Filing chart and the Final Action Dates chart. The charts are up-to-date guides on which priority dates are current; foreign nationals for immigrant visas with priority dates that land before the date listed in the chart are considered current. If the foreign national priority date is current based on Dates for Filing, these applicants should begin to prepare for immigrant visa processing as instructed by the National Visa Center (AILA.8.4). But the immigrant visas can only be granted when the foreign national’s priority date is current under the Final Action Dates chart.
Once the EB-1C Immigration Petition for Alien Workers (Form I-140) is approved, the foreign national’s spouse and unmarried children under the age of 21 may apply for permission to enter or remain in the United States under E-14 (spouse of a priority worker) and E-15 (child of a priority worker) immigration status, which also provides them with the right to work and makes them eligible for permanent residence in due course. The foreign national may file the E-14 and E-15 related applications directly or they may the employer may do it on his/her behalf.
Although most EB-1C petitions are successfully approved every year, EB-1C petition denials do occur, typically when the application is not properly prepared or when the sponsoring organization or the foreign national employee are not eligible to utilize the EB-1C visa process. USCIS does not maintain EB-1C petition denial statistics, but anecdotal evidence suggests that approximately 10% of EB-1C petitions are denied each year. The majority of rejected EB-1C petitions are denied on technical grounds. Such denials can be easily avoided or at least anticipated, if the immigrant visa petition (Form I-140) and related supporting documentation are carefully compiled in accordance with published requirements.
A major issue that leads to the rejection of EB-1C immigrant visa petitions is that submitted information is inconsistent across different parts of the application and/or required documents are missing. Whether information inconsistency is enough to warrant the EB-1C petition’s denial is up to the consular officer reviewing the case. The presence of inconsistent information in the application or missing supporting evidence can put the entire application in jeopardy and may lead to a denial. The best way to avoid providing inconsistent information or missed documents is to proofread and double check the application package carefully. If the consular officer encounters inconsistent information or missing documents, they may request a clarification for additional information, or may reject the application outright.
Another major reason for denial is the employee’s failure to meet EB-1C eligibility requirements. Not every foreign national employee sponsored by a U.S. company meets the EB-1C qualifications. If the foreign national lacks the requisite managerial experience, eligibility will frequently be denied. The EB-1C petition may also be denied if the foreign national employee’s work history at the foreign affiliate of the sponsoring organization did not meet strict EB-1C requirements. The employee’s work at the foreign office, while important, may not have involved management of others or strategic oversight of the company’s units or functions.
Another failure may occur, if applicants who are working in the United States on an L-1A status remain in the country for longer than three years, thus automatically failing the requirement that they must work at a foreign affiliate for at least one full year in the prior three years before being eligible for EB-1C visa opportunity. In that instance, the foreign nationals must leave the United States, return to their country of origin and work for the foreign affiliate of the sponsoring organization for at least a full year before re-applying for EB-1C status.
The next reason why one might be denied is because of one’s criminal record. As part of its EB-1C petition review process, USCIS conducts a thorough background check for the visa beneficiary. A criminal record (even minor infractions) in the United States or in the country of origin is likely to result in the denial of the EB-1C petition application.
An applicant also may be rejected because of a violation of visa status. Violations of visa status are taken very seriously by the USCIS. Typical violations include the foreign national overstaying their temporary employment visa or remaining in the United States after a tourist visa expires. Such “out of status” violations may have serious consequences for the applicant, as they may not only result in a bar on the individual’s ability to enter the United States but may also impact the individual’s ability to obtain other visas for a foreseeable future.
Even if the foreign national is an ideal candidate for EB-1C, the sponsoring organization may fail to meet the EB-1C qualifications. Although most larger companies are generally qualified to sponsor managerial and executive personnel for EB-1C visa status provided the foreign national previously worked for the organization’s foreign affiliate, smaller and less established organizations may encounter qualification problems. For example, the ‘qualifying relationship’ requirement between the sponsoring organization and its foreign affiliate may at times be difficult to demonstrate for smaller and less established organizations.
The foreign national may also have been rejected because their post-immigration role at the sponsoring organization also does not always meet the EB-1C definitions of ‘manager’ or ‘executive.’. For example, some roles in the organization may have management titles (e.g. client executive or information manager), yet, do not involve any actual management, independent authority nor strategy responsibilities. Such positions, their title notwithstanding, do not qualify the foreign employee for the EB-1C preferences and the petition application is usually denied under the circumstances.
Other reasons the sponsoring organization may fail to qualify for EB-1C qualification is if the sponsoring organization has not been in business in the United States for a full year; or it fails to convince the USCIS reviewer that it provides real commercial products or services (as opposed being a passive investor or a shell company). Further reason for denial is if they fail to demonstrate that it has the financial wherewithal to pay the manager or executive the compensation proposed in the offer of employment.
Finally, failure on the part of the sponsoring employer to provide the proper application fees can result in denial of the petition. Due to the changing filing requirements and fluctuating fee structures, some applications never reach the consideration or decision phase due to insufficient fees filed with the application. Applicants and sponsoring employers should always be careful and check the USCIS website for the most current fee breakdown.
If the EB-1C petition application is denied, the foreign national may consider refiling the application, pursuing the appeals process, seeking a reconsideration, or considering other application alternatives.
The refiling option is generally available when the petition is denied because of a minor error or omission, such as missing documents in the original application package, wrong location for the filing, or an incorrectly paid fee. The refiling is also an option, if the USCIS denied the application due to lack of sufficient supporting documentation, and the foreign national has since secured additional supporting evidence to provide the USCIS with the refiling.
If the EB-1C petition application was denied due to lack of eligibility, the refiling is likely to result in another denial and, therefore refiling would not be a good strategy. The denial of the EB-1C immigrant visa petition be appealed to the Administrative Appeals Office (AAO), but this can take several years to result in a decision. Except in rare cases of blatant disregard for review procedures or a clear error on the part of the USCIS reviewer, AAO usually upholds the USCIS decisions anyways. The appeals process is only available to EB-1C applicants who are presently residing in the United States and are in the country under nonimmigrant status. The decisions made by consular posts abroad generally cannot be appealed.
Another alternative is to submit a motion for the USCIS to reopen the case. This can be done if the foreign national can provide additional information that was not available when the petition was originally filed. Alternatively, the petitioner can claim that the reviewer was in error in denying the petition and a new consideration is warranted.
The motions to reopen or to reconsider are different from the standard refiling process. When the petition is refiled, it is done in response to the deficiencies identified by the reviewer. The request to reopen the case, on the other hand, is a request to look at the case again because of an error on the part of the reviewer. If the reconsideration does not yield a favorable outcome, alternative visa options must be considered.
Finally, if the EB-1C route is not viable, the petitioner should consider alternative, albeit less advantageous, routes to permanent residence. The EB-2 or EB-3 visas are possible for foreign nationals who do not qualify for EB-1B status. The major downside, though, is that if the rejected applicant decides to apply instead for EB-2 or EB-3, they will have to go through the time intensive labor certification application process.