Managers and Executive Transferees
EB-1C is a specific employment-based immigrant preference category that was created for managers and executives. This visa is often orchestrated with L-1A non-immigrant visas. The major difference between L-1A and EB-1C is the permanent nature of the EB-1C visa. Although L-1A status is not necessary for applying for EB-1C, an L-1A status will make the EB-1C case stronger.
There are certain requirements for both petitioner employer and beneficiary employee.
The employer must be:
- An US company must have “qualifying relationship” with the foreign entity, i.e. a parent, branch, subsidiary, an affiliate, or same corporation with the foreign entity.
- The US company must have conducted business in the United States at least one year
- The US company must have conducted business as a qualifying organization in the regular, systematic, and continuous provision of goods or services.
The employee must meet the following requirements:
- Have been employed outside the United States in a managerial or executive capacity for at least one year in the three years prior to the filing of the petition;
- If the worker is currently in the U.S. working for the same prospective U.S. employer, the three year period is the time preceding the worker’s entry to the U.S. as a non-immigrant;
- the foreign employer must have been the same employer, an affiliate, a subsidiary or the same company of the prospective U.S. employer;
- the alien must be coming to the U.S. to work in an executive or managerial capacity;
To qualify as “managerial capacity”, the alien employee must prove:
- Manages the organization, or a department, subdivision, function, or component of the organization;
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
- Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed;
- Exercise discretion over the day-to-day operations of the activity or function for which the employee has authority.
A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.
The executive capacity requirement is met if the alien can prove that he or she primarily:
- Directs management of an organization, major component, or function;
- Establishes goals and policies;
- Exercises wide latitude in discretionary decision-making; and
- Receives only general supervision from higher executives, the board of directors, or stockholders.
In EB-1B and EB-1C petitions, a permanent job offer is required. In other words, a U.S. employer must be the petitioner for EB-1B or EB-1C cases.
The biggest advantage for those who qualify for an EB-1 petition is that the applicant does not have to go through the Labor Certification process. Another advantage is that visa numbers are almost always current for the EB-1 category which means that an alien will not have to wait for years for the visa to become available before adjusting status.