EB1C Visa - The Ultimate Guide

The EB-1C Visa

• The EB-1C Visa is an immigrant visa that allows a multinational company to transfer their managers or executives to an affiliated US Company and become a green card holder;

• Unlike its popular big brother the EB-1A visa, the EB-1C Visa does not allow for self-petition. This means the U.S. company must petition for the foreign executive. The U.S. company is the petitioner, and the foreign executive is the beneficiary;

• In order to qualify for the EB-1C visa, the U.S. company must have been in operation for at least one year;

• The Applicant must have worked for at least 1 full year during the past 3 years for the foreign affiliated company;

• The EB-1C Visa does not require the labor certification process;

• The EB-1C Visa allows the applicant, their spouse and children under the age of 21 to apply for permanent residency;

What is the EB1C Visa?

The EB-1C visa is an immigrant visa that is often used by multinational executives, managers to go from an overseas parent company or subsidiary to the U.S. company. In order to qualify for the EB-1C visa, there are several requirements:

• There must be a Qualifying Relationship between the U.S. company and the Foreign one;

• The U.S. company must have been in operation for at least 1 year;

• The foreign executive’s job duties must be managerial or executive in nature.

Who can petition for the EB-1C Visa?

The EB-1C visa must be petitioned by a US company that has been doing business in the U.S. for at least 1 year.

Who is eligible for EB-1C Visa?

To qualify for EB-1C classification in this category, an EB-1C visa petitioner must show that they have a qualifying relationship with a foreign company (same parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and that the company has been doing business as an employer in the United States for at least 1 year.

What are the EB1C Visa Requirements?

There are several requirements for the EB1C visa:

1. The U.S. company and the foreign company must maintain a “qualifying relationship,” with one of the entities being the parent, subsidiary, branch, or affiliate of the other. A qualifying relationship could mean greater than 50% ownership interest and/or actual control by one entity of the other; each company is owned by the same group of individuals owning the same share or proportion of each entity.

2. The EB1C visa applicant must have worked full time for at least 365 days during the past three years for an overseas office.

3. The EB1C visa applicant must be in the managerial or executive position, or specialized knowledge capacity position in both the overseas and U.S. entities.

4. The U.S. office should be in operation for a minimum of one year prior to application.

EB1C Manager Visa Requirements

Qualifying Relationship

According to AFM 22.2(i)(3)(B), “when an employer wishes to transfer an alien employee working abroad to a U.S. company location as an E13 immigrant, a qualifying relationship must exist between the foreign employer and the U.S. employer. 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, as specified in 8 CFR 204.5(j)(2). To establish a “qualifying relationship” under the Act and the regulations, the petitioner must show that the beneficiary’s foreign employer and the proposed U.S. employer are the same employer (i.e., a U.S. entity with a foreign office) or related as a “parent and subsidiary” or as “affiliates.”

1 Year Rule

The EB-1C foreign work must have worked full time for the foreign company for at least one year during the past three years before the EB1C visa petition. USCIS will want to see your payroll tax-records to prove this.

Additionally, the U.S. Company must also have been doing business for at least one year. Thus, a brand new startup will not be able to sponsor EB1C green card for its executive right away.

Ability to Pay

The U.S. company must show ability to pay the executive a salary at the executive level.

Managerial or Executive Capacity Overseas

The EB-1C employee must have worked in a senior manager position overseas. They must also be coming to the U.S. to work in a senior managerial position.

Managerial or Executive Capacity in USA

The EB1C employee must be coming to the USA as a senior managerial position. These include managers who will have other people report to them (personnel managers); or department managers running a specific function of the company (function managers).

When it comes to functional managers, USCIS will apply extra scrutiny as seen in the case Matter of Z-A-, Inc.: “Ultimately, we must determine whether the petitioner has demonstrated that the beneficiary will primarily manage, as opposed to perform, the essential function. While an L-1A function manager may use their business expertise to perform some operational or administrative tasks, they must primarily manage an essential function.”

Managerial Capacity

The EB-1C manager must be doing the management of other people in the company. If USCIS finds that the manager is both implementing the strategy and execution, then it will deny the application.

Executive Capacity

“Executive capacity” is defined by the INA as an assignment within an organization in which the employee primarily: 

• Directs the management of the organization or a major component or function of the organization; 

• Establishes the goals and policies of the organization, component, or function; 

• Exercises wide latitude in discretionary decision-making; and 

• Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

However, the AFM cautions: 

“An individual will not be deemed an executive under the statute simply because they have an executive title or because some portion of their time is spent “directing” the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the individual. In this regard, there must be sufficient staff (e.g., contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function… The petitioner must also establish that the U.S. entity itself is in fact conducting business at a level that would require the services of an individual primarily engaged in executive (or managerial) functions. In making this determination, you should consider, as appropriate, the nature of the business, including its size, its organizational structure, and the product or service it provides.” 

Organization Charts

The employer needs to show that there are enough employees to implement the clerical work under the EB-1C manager. An org chart will be helpful to show this.

EB-1C Visa Document Checklist

DOCUMENTS ABOUT THE FOREIGN COMPANY:

·       Incorporation Documents/Partnership or Joint Venture Agreement:

o   Articles/Memoranda of Incorporation;

o   Bylaws;

o   Stock certificates/ledger;

o   Name change/registration;

·       Business permits/licenses/registration;

·       Company annual report/marketing brochure/resume;

·       Lease/deed; mortgage or rent receipts;

·       Organizational chart;

·       Articles, promotional materials about the company, its products, services, or key people;

·       Recent company tax return or financial statement;

·       Copies of awards, memberships or special achievements by the company or key personnel;

·       Photographs of the inside and outside of the facilities.

DOCUMENTS ABOUT THE U.S. COMPANY:

·       Incorporation Documents/Partnership/Joint Venture Agreement;

·       Branch qualification to do business in United States or State;

·       Business permits/licenses/registration;

·       Company annual report/marketing brochure/resume;

·       Latest financial statement or federal tax return;

·       Information on any changes affecting corporate structure (if applicable);

·       Lease/deed; mortgage or rent receipts;

·       Organizational chart;

·       Articles, promotional materials about the company, its products, services, or key people;

·       Copies of awards, memberships or special achievements by the company or key personnel;

·       Photographs of the inside and outside of the facilities.

EB-1C Visa FAQs:

How long does it take to apply for the EB1C Visa?

How long does the EB1C visa last after approval?

What are the Benefits of the EB1C Visa?

What is the EB1C Visa Application Process?

Can I Self-petition an EB1C Visa?

Can I work for other employers after EB1C approval?

Can my Spouse and Children Apply with me?

Contact Xu Law Group for your EB1C Visa.

Our team of expert immigration lawyers will guide you in both processes of filing the EB1C visa petition. Reach out today for a consultation.

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