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Do You Qualify?: EB-1 Multi-National Manager and Executive Filing


Many have heard of the EB-1 Multi-National Manager/Executive preference category when applying for an I-140, green card through employer, and the benefits it can bring with obtaining U.S. permanent residency at a faster rate than those who apply under EB-2 or EB-3 category.

In this blog post, we want to dive deeper into tips for employers and employees on the EB-1 category to help you in navigating frequently asked questions on the subject.

What is the EB-1, Multinational Manager or Executive preference category?

A preference category means that this classification relates to the green card process. Those who qualify for EB-1 meet the following criteria:

  1. Were in a managerial or executive position working at the foreign entity outside of the U.S. (parent, subsidiary, affiliate)
  2. Must be working in the qualifying managerial or executive position for at least one year of the last three years prior to filing the petition or prior to their entry into the U.S.;
  3. Will be working in a managerial or executive position in the U.S.;

 

See related blog: The Visa Bulletin Explained

 

Is a Labor Certification (PERM process) required for the EB-1 filing?

The EB-1 preference category does not require a Labor Certification or test of the labor market like an EB-2 or EB-3 filing does. This is the appeal of the EB-1 preference category for many applicants and employers.

The biggest question: What qualifies as a “managerial” or “executive” position?

Especially over the last few years, the idea of what qualifies as a manager or an executive position has changed and has received more scrutiny by USCIS than in previous years. What, then, does USCIS consider to be a manager or executive position? At a glance, we can say that:

  • Executives = someone who manages the senior managers and the overall direction of the organization or company;
  • Managers = someone who manages professional workers, people who are in a role that requires at least a Bachelor’s degree in a related field, and/or an essential function of the organization or company;

It is important to dig deep and have those details explicitly fleshed out so that it is clear to the USCIS officer reviewing the application which of the two options this position qualifies under. While the other two qualifications can be proven through pay slips and other corporate documentation, proving that the position qualifies as a multi-national manage or executive requires more work on the part of the company and the attorneys.

Keep in mind: Just because someone has been approved and is working in the U.S. under L-1A category does not mean that they will automatically qualify for EB-1 preference category. USCIS scrutinizes the EB-1 category to a much higher level than they do the non-immigrant filings.

Is L-1A Manager/Executive non-immigrant status the required prerequisite for an EB-1 Multi-national Manager/Executive filing?

It depends. Being on an H-1B or L-1B status does not automatically preclude you from qualifying for the EB-1 preference category. Those in managerial positions are professional workers and typically have specialized knowledge.

On the flip side, just because you are in the U.S. working as an L-1A manager does not always mean that you will qualify for an EB-1 multi-national manager/executive filing. The key is that the applicant has worked as a manager or executive in both the foreign entity and the U.S. entity to qualify for the EB-1 multi-national manager or executive preference category.

Is filing under EB-1 preference category a guarantee to obtain a green card faster than other preference categories?

At this time, the EB-1 preference category does have a shorter waiting period for applicants to obtain their permanent residency. Depending on country of origin, the wait for an EB-1 filing for a green card can be between one year to three years, whereas under EB-2 or EB-3 categories, those filing, especially if the country of origin is India or China, are experiencing waiting periods of nine or ten years.

It all depends on how the visa bulletin moves.

**Form I-140, Immigrant Petition for Alien Worker, filed under the EB-1 category cannot be filed under premium processing.

Can you file for EB-1 Multi-national Manager/Executive if the beneficiary/applicant is outside of the U.S.?

Yes, but first the beneficiary has to be working for a parent/subsidiary/affiliate/branch of the company in the U.S. in a qualifying managerial or executive position for at least one year prior to the filing of the EB-1 I-140 petition.

Is there a certain amount of time that the employee has to work while in the U.S. before the company can apply for the EB-1 Multi-national Manager/Executive filing?

No. As long as the beneficiary qualifies for the EB-1 Multi-national Manager/Executive filing, which you can discuss with your immigration attorney, the company can begin the process for the employee whenever it deems appropriate.

If the employee has an approved EB-1 I-140, can they continue to extend their status?

Yes if they are on H-1B status, and no if they are on L-1 status. INA regulations do not allow for extensions of L-1A visas past seven years and L-1B past five years. This reality is something that companies need to keep in mind when bringing employees over on L-1A or L-1B status if they intend to file for a green card for this beneficiary.

What will happen if the EB-1 I-140 has been approved and in waiting for the priority date to become current, there is a significant change in duties?

Truly, it depends. When analyzing this situation, your immigration attorney is likely to ask, “what are the significant changes in the duties?” If the beneficiary is still managing professional employees/managing an essential function of the company and acting in a senior role of the company, then this should not affect the EB-1 I-140 offered position. Because, at the end of the day, the EB-1 I-140 is an offer for a future position with the company once the employee is a permanent resident.

If there is going to be a change in duties for the employee then speak with your immigration attorney. They will be able to determine whether the change is significant enough to require further analysis of the effect on the approved EB-1 petition.

 

Related blog post: Attorney at Law Spotlight: Bashyam Shah LLP

 

So, in summary:

  • The EB-1 preference category can be a great option for non-immigrants if they qualify;
  • Just because you are in the U.S. as a manager doesn’t automatically mean you will qualify for EB-1.

The most important item to remember is strategy. Figuring out if you or your employee qualifies for EB-1 Multi-national Manager or Executive filing can get complicated, so make sure to speak with an experienced immigration attorney about options.