EB-1C is an employment-based, first preference immigrant visa petition under the United States Immigration and Nationality Act. It is particularly designed for multinational company executives and managers. The EB-1C petition must be filed by a qualifying U.S. Company, thus the foreign national must have a job offer from a U.S. Company to have his or her EB-1C petition filed. However, no labor certification is required for EB-1C petitions. Therefore, an EB-1C petitioner does not have to apply for prevailing wage and undergo the mandatory recruitment process for PERM application to file the underlying petition. Furthermore, because EB-1C belongs to the first preference classification for priority workers, visas are always available for the foreign nationals to apply for adjustment of status or consular process once EB-1C petitions are approved.
A successful EB-1C petition must meet four requirements. First, there must be a qualifying corporate relationship between the U.S. company and the foreign company where the foreign national has been employed outside the United States; second, the U.S. company must have been doing business in a regular, systematic and continuous manner for at least one year; third; the foreign national must have been employed by the qualifying entity abroad for at least one year during the three years preceding the date the EB-1C petition is filed, and such employment must have been in a managerial or executive capacity; and fourth, the foreign national’s employment at the U.S. company would be in managerial or executive capacity.
Qualifying Corporate Relationship
The U.S. company filing the underlying EB-1C petition must be the same company or a subsidiary or affiliate of the company that employed the foreign national abroad. The qualifying relationship does not to exist throughout the entire period of time the foreign national was employed abroad, so long as it exists at the time of filing the petition. A qualifying relationship exists when the U.S. employer is an affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity. Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control; and control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.
Doing Business for One Year
The U.S. petitioning company must have been doing business for at least one year by the time the underlying EB-1C petition is filed. “Doing business” is defined as “regular, systematic, and continuous provision of goods and/or services by a firm, corporation or other entity and does not include the mere presence of an agent or office.” Thus, the EB-1C petitioner must provide proof that it has been actively conducting business activities in the United States, such as copies of the business license and/or registration, lease for the premises, federal tax returns, state tax returns reflecting the employment of workers, and/or promotional materials discussing the goods or services offered.
Qualifying Management Abroad
There are two requirements under this element. First, the foreign national must have been employed by the qualifying entity abroad for at least one year during the three years preceding the date the EB-1C petition is filed. Second, the qualifying employment abroad must be in a managerial or executive capacity. The regulations define “managerial and executive” the same way for immigrants as for L-1 nonimmigrants.
Position to be Held at U.S. Company
The EB-1C petitioner must demonstrate that the position the foreign national will hold at the U.S. company is also in a managerial or executive capacity.
Managerial or Executive Position
Because both the employment at the foreign entity and at the U.S. company must be in a position with managerial or executive capacity, understanding the definition of a manager or executive position under the regulations is key and critical to a successful EB-1C petition.
The general definition of “manager” entails responsibility for directing the activities and budget of a department, division, business unit, or team, through a subordinate staff of managers, degreed professionals, and/or technical specialists. According to the regulations, a manager primarily: 1) manages the organization, department, subdivision, function, or component of the organization; 2) supervises and controls the work of other supervisory, professional, or managerial employees; 3) possesses authority to hire and fire or recommend those and other personnel actions (such as promotions and leave and leave authorization) for employees directly supervised; and 4) exercises 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 a manager unless the employees supervised are professionals.
An executive generally exercises more senior-level responsibility for directing multiple departments, divisions, and business units. The following are duties of executives recognized by the regulations for purposes of the EB-1C petition: 1) directs the management of the organization or a major component or function of the organization; 2) establishes the goals and policies of the organization, component, or function; 3) exercises wide latitude in decision-making; and 4) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
Even if the foreign national does not have subordinate employees to supervise, he or she may still qualify as a manager if he or she manages an “essential function” of the business. A function manager is a beneficiary who primarily: 1) manages the organization, or a department, subdivision, function, or component of the organization; 2) manages an essential function within the organization or a department or subdivision of the organization; 3) functions at a senior level within the organizational hierarchy or with respect to the function managed; and exercises direction over the day-to-day operations of the activity or function for which the employee has authority.
Although USCIS may not deny an EB-1C petition based only on the size of the petitioner, companies with a single employee or a small workforce will face close scrutiny from USCIS in their EB-1C petitions. When filing an EB-1C petition by a smaller company, it is important to clearly document that the organization needs and can support an executive or manager. The petitioner should submit extensive documents to establish the structure, products or services, operations, income, and business plans of the company. The documents must also demonstrate that the foreign national will be supported so that he or she will not be tasked with carrying out the day-to-day operations of the organization. Thus, documentation about hiring contractors, consultants or outside professionals are very important in EB-1C petitions filed by smaller companies.
The foreign national’s spouse and unmarried children can also benefit from the EB-1C petition filed on behalf of the foreign national. If they reside in the United States with valid nonimmigrant status such as L, H or F visa, they can file adjustment of status applications with USCIS and obtain immigration benefits such as employment authorization and travel documents. If the family of the foreign national resides outside the United States, once the EB-1C petition is approved, the whole family, including the foreign national, spouse and unmarried children under 21 years old, may start the consular process application to obtain green cards.
Concurrent Filings of EB-1C Petition and I-485 Application
Because EB-1C is one of the first preference immigrant visa classifications under the employment-based category, visas are almost always available. Thus, at the time of filing the EB-1C petition, if the foreign national and his or her immediate family members reside in the United States with legal status, they may choose to file adjustment of status applications concurrently with the underlying EB-1C I-140 petition. Filing an adjustment of status application may entitle the foreign national and his or her family members to immigration benefits such as work permits and travel documents. However, if the foreign national’s family members do not reside in the United States at the time of filing the EB-1C petition, they will not be entitled to such benefits.
Documents needed to file an EB-1C petition
An EB-1C petitioner should prepare four categories of evidence or documentation for the EB-1C petition. First, the documents establishing the qualifying corporate relationship between the foreign company and petitioner, which may include but are not limited to: articles of incorporation, company bylaws, stock certificates, stock ledgers, stock purchase agreements, stockholder lists, etc. Second, the documents establishing that the U.S. company has been doing business for at least one year by the time of filing the EB-1C petition, such as products catalog, website printouts, purchase orders, sales contracts, bank statements, financial statements, wage and salary reports, corporate tax returns, warehouse lease agreements, and other documents indicating regular business activities of the company. Third, evidence clearly demonstrating that the foreign national’s job position at the foreign company is in a managerial or executive capacity, such as company’s letter, organizational chart, job duties and educational background of the employees the foreign national supervises, and other evidence establishing the foreign national directs and manages the department, division and/or function of the company. Fourth, evidence demonstrating that the foreign national’s job position at the U.S. company is to be in a managerial or executive capacity, which may include but is not limited to: appointment letter, organizational chart, supervised employees’ job duties and degree certificate, any other persuasive evidence indicating the foreign national’s job position as executive or managerial within the organization.
The above is just a general introduction on preparing documents for an EB-1C petition, and should not be deemed an exhaustive list for every company’s EB-1C petition. Each organization is unique in terms of internal organization, the products manufactured, or the services provided. Thus it is very important for the petitioning U.S. business entity to present specifically tailored evidence to support its particular EB-1C petition. Each EB-1C petition requires substantial documentation about the organization’s business activities and the foreign national’s job duties in the U.S. and overseas. Therefore, we strongly suggest that you contact us for a consultation regarding your EB-1C petition.
For a detailed discussion of EB-1C petitions, please refer to the “EB-1C Frequently Asked Questions” page of our website. The Law Offices of Yongbing Zhang has extensive experience in successfully representing qualified U.S. business entities in filing EB-1C I-140 immigrant visa petitions before USCIS. As of yet, we have never received a denial on an EB-1C petition prepared and filed by our firm. Please click here to read some of our successful petitions.
Scope of our Services in EB-1A Petitions
Please contact us for a free evaluation of your EB-1C petition by filling out the initial online questionnaire. After we are retained, we will provide the following quality services for the EB-1C petition:
- Provide a list of documents and evidence the company should collect for the EB-1C petition;
- Answer unlimited questions from the company and foreign national either through phone calls or emails regarding the EB-1C petition;
- Review all of the company’s documents, evidence from the foreign national and proposed evidence, and advise as to whether reviewed documents should be included in the petition or replaced with other evidence;
- Draft letters or statements based on the information provided by the company regarding the job positions and job duties of the foreign national;
- Work with the company and/or foreign national to finalize the letters or statements;
- Prepare and finalize all the immigration forms and supporting documents for the petition, including the signed letters or statements;
- Draft and finalize a petition letter in support of the company’s petition persuasively explaining to the USCIS Service Center why the company’s EB-1C petition should be approved given the evidence submitted and according to U.S. immigration law;
- Organize, tab or paginate the petition package and file it with USCIS;
- Monitor the status of the pending EB-1C petition after filing;
- In the event of a USCIS Request for Evidence (RFE), work with the company to prepare and file the additional documentation in response to the RFE; and
- Advise you of further legal steps you can take after receiving USCIS decision, which marks the end of our legal representation of your EB-1C petition.
We will advise you of any legal steps you may take in the aftermath of the USCIS decision. We will inform you whether you are eligible for adjustment of status after the EB-1C petition is approved. If it is a denial, we will discuss with you the option and possible outcome of your next actions, such as an appeal to the Administrative Appeals Office (AAO) or filing a new petition.
Rules for Clients Communication
At the Law Offices of Yongbing Zhang, client satisfaction is our priority. To better serve our clients, our office has implemented the following rules to assure the quality of our services:
- All unanswered phone calls during the regular work hours shall be answered within 24 hours of the next business day;
- All emails shall be replied to within 24 hours of the next business day;
- All first drafts of letters, statements, affidavits or other documents shall be completed within five business days upon receipt of all the necessary information from the client;
- All revisions, amendments or additions to a draft of a letter, statement or affidavit shall be completed within five business days after the request by the client;
We suggest that you contact us today for a free evaluation. Our experienced attorneys will provide you with a detailed analysis of your case within 24 hours.