RISK: HOW TO MINIMIZE IT WHEN FILING FOR AN EB-1 MULTINATIONAL EXECUTIVE/MANAGER CLASSIFICATION

PANELISTS: LESLEY AMANO, MILES AND STOCKBRIDGE, P.C.

LESLIE DELLON, AMERICAN IMMIGRATION COUNCIL

MODERATOR: KANYA SANDERS, TAMPOE SANDERS LAW OFFICE

The Law

Certain multinational executives and managers.--An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien's application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive. INA § 203(b)(1)(C)

Who Can Petition?

• A U.S. employer. 8 C.F.R. § 204.5(j)(1)• This eliminates a U.S. branch office of a

foreign company from filing an immigrant petition.

• Okay if foreign national worked for branch office abroad of a U.S. company. Adjudicator’s Field Manual (AFM) ch. 22.2(i)(3)(B)(3).

Qualifying Relationship

• The employer abroad must be related to the U.S. petitioner in a specific way.

• (1) Parent/Subsidiary(a) At least 50% ownership with control, or(c) 50/50 joint venture, with control and veto, or(d) Owns less than 50% but has control

Qualifying Relationship (cont.)8 C.F.R. § 204.5(j)(2) (Subsidiary)

• Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, at least half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity but in fact controls the entity.

Qualifying Relationship (cont.)

• (2) Affiliate(a) One of two subsidiaries, both owned and controlled by same parent or individual, or(b) One of two entities owned and controlled by same individuals, each owning/controlling approximately the same share or proportion, or(c) Special provision for U.S. accounting firm partnerships.

Qualifying Relationship (cont.)8 C.F.R. § 204.5(j)(2) (Affiliate)

Affiliate means:

(A)One of two subsidiaries both of which are owned and controlled by the same parent or individual;

(B) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity; or

Qualifying Relationship (cont.)8 C.F.R. § 204.5(j)(2) (Affiliate)

(C) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.

Qualifying Relationship (cont.)

(3) Same Employer: U.S. employer with foreign branch office.– A branch office does not have a separate legal

identity from the entity that establishes it.

•The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas. 8 C.F.R. §204.5(j)(3)(i)(C)

Qualifying Relationship (cont.)

• What if the entity has a single owner?• “Self incorporated” (OKAY)• Single member LLC (OKAY)• Sole proprietor (NOT)

Source: AFM. ch. 22.2(i)(3)(B)(3)-(B)(4).

Qualifying EmploymentManager or Executive?

• For an alien who is outside the United States:In the three years immediately preceding the filing of

the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or

8 C.F.R. § 204.5(j)(3)(i)(A)

Qualifying Employment (cont.)

• For an alien who is already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed overseas:

In the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity.

8 C.F.R. § 204.5(j)(3)(i)(B)

Managerial Duties, per USCIS

• In the real world, managers often “pitch in” and get the work done, leading by example.

• Per USCIS, managers are not “hands on” and must either be:–managing certain types of employees or–managing a function.

Managerial Duties (cont.)Definition: 8 C.F.R. § 204.5(j)(2)

Managerial capacity means an assignment within an organization in which the employee primarily:(A) Manages the organization, or a department, subdivision, function, or component of the organization;(B) 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;(C) If another employee or other employees are directly supervised, 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; and(D) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority.

Executive Duties, per USCIS

• Even for a USCIS regulation, the definition of Executive is vague.

• When a job has executive and managerial aspects, try to qualify the employment as managerial.

Executive Duties, per USCIS (cont.)

• Lately, USCIS expects the petitioner to designate a job as either executive or managerial.

• The employment abroad and the employment offered in the U.S. do not have to be in the same category.

Executive Duties (cont.)Definition: 8 C.F.R. § 204.5(j)(2)

Executive capacity means an assignment within an organization in which the employee primarily:(A) Directs the management of the organization or a major component or function of the organization;(B) Establishes the goals and policies of the organization, component, or function;(C) Exercises wide latitude in discretionary decisionmaking; and(D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Doing Business

Doing business means the 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. 8 C.F.R. § 204.5(j)(2)

Doing Business (cont.)

• The U.S. petitioner must have been doing business for at least 1 year prior to filing the immigrant petition.

See 8 C.F.R. § 204.5(j)(3)(i)(D)

Doing Business (cont.)

• Qualifying relationship must continue to exist with foreign national’s employer abroad from date petition is filed to date adjustment of status to permanent residence or immigrant visa is approved.

• However, there is some case law to the contrary, and it appears that USCIS and the Dept. of State have differing interpretations.

To EB-1 From L-1A

• Easiest, since the manager and executive definitions are the same.

• L-1A approval does NOT guarantee EB-1 approval.

See AFM ch. 22.2(i)(3)(H).• Would denial be “arbitrary and capricious“ since the

requirements are almost identical?

To EB-1 from L-1B

• NO intracompany immigrant classification for specialized knowledge.

• Many positions that are specialized knowledge have managerial aspects. (Possibly executive.)

To EB-1 from L-1B (cont.)

• Does the employment abroad qualify as managerial (or executive)? If so, 2 options:– File for EB-1 while beneficiary remains in L-1B

status, or– First change status to L-1A BEFORE the foreign

national reaches 4 ½ years in L-1B status (see 8 C.F.R. § 214.2(l)(15)(ii)),and

then file for EB-1

To EB-1 From Other NIV Status such as E-1, E-2, E-3, H-1B, H-1B1

• Key requirements:–Qualifying relationship between U.S.

employer and prior foreign employer. –Qualifying employment abroad calculated

from date of NIV admission to U.S.• Source: 8 C.F.R. § 204.5(j)(3)(i)(B)

To EB-1 From Abroad

• Foreign national does NOT have to work in the U.S. in NIV status first.

• Depending upon the desired timing of the transfer, the I-140 can be filed for executive/manager based overseas, followed by processing for the IV at consulate.