The Complete Guide to the Eb1c Green Card - Frear Law

Table of Contents

Intro: The EB1C Green Card Guide

In this Eb1c Green Card guide, I will provide you with a general overview of the requirements and the process for this green card category so that you can begin to evaluate if it would be a good fit for you or your organization. Below, I discuss the Eb1c’s popularity, the requirements, some problematic situations and the application procedure. As a bonus, at the end of the guide, I provide a list of Eb1c Green Card FAQs. I hope that you find this information to be helpful!

executives eb1c

The Eb1c: A Popular Green Card Option for Managers and Executives

The Eb1c is a popular green option for multinational companies who would like to sponsor a manager or executive for permanent residence.

There are a number of reasons for this….

eb1c is similar to l1 visa

Popularity Reason #1: The L1A Visa is Similar to the Eb1c Green Card

One reason why the Eb1c is popular has to do with its similarity to the L1A visa. The L1A visa allows qualifying manager and executive employees to transfer into the United States on a temporary basis. The Eb1c green card category is reserved for the same type of employees.

Additionally, the requirements are similar. Both the L1A Visa and the Eb1c green card require the employee to have worked abroad for a qualifying entity for at least one continuous year during the last three years. Also, they both have similar rules regarding who qualifies as a manager or executive.

Once these high level employees start working in the United States, their employers oftentimes decide to take the next logical step by sponsoring them for a green card. This works nicely since employers are already familiar navigated a similar process with the L1 Visa.

eb1c trap

DO NOT FALL INTO THIS TRAP!!!

Although there are similarities between the L1A Visa and the Eb1c green card, do not fall into the trap of thinking that the Eb1c is automatic for an L1A visa holder. In many cases, a person who has enjoyed L1A Visa classification will be denied an Eb1c green card. The reason relates to the fact that unlike an L1A Visa, a green card is permanent in nature. Thus, it is subject to greater scrutiny by USCIS. As such, a higher level of care should be taken when filing for the Eb1c green card.

eb1c benefits

Popularity Reason #2: PERM Labor Certification is Not Required!!!

Most employers who wish to sponsor an employee for a green card must go through the difficult(if not painful) PERM labor certification process.

This process requires the employee to ask the government how much their employee should be paid based on the job duties and required experience. Then, once the employer receives the required wage( typically 4-5 months later) they must conduct specific recruitment efforts that are designed to ensure that there are no qualified US workers who can do the job. This costs a lot in both legal and advertising fees.

Also, the process is time consuming. At the time of writing this, the wait for the prevailing wage, advertising process and PERM adjudication oftentimes results in a total wait time 10-14 months before an I-140(immigrant petition) can be filed. This is suboptimal for employers who want an approval ASAP.

The EB1C puts you in the fast lane to a green card village.

You don’t have to go through the PERM process. You don’t have to pay advertising costs. You just have to work with your business immigration lawyer to file the I-140 and all of the required documentation. This documentation will be carefully crafted to demonstrate how you meet the requirements that are discussed below…

eb1c requirements

The EB1C Requirements

In this section, I provide an overview of the EB1C green card followed by a deeper dive into each of the EB1C requirements.

In order to qualify for an Eb1c green card, the employer(petitioner) will have to show the following…

  • Qualifying relationship between the foreign company and US company
  • US company actively engaged in business for at least one year
  • Qualifying employment(managerial or executive) abroad by the employee for at least one year
  • Permanent offer by the US company to employ the foreign national as a manager or executive
  • US company has the ability to pay the proffered wage

The Qualifying Relationship

In order to have a qualifying corporate relationship, there must be ownership and control by one corporate entity over the other. The US company who will be filing the green card petition for the foreign national manager or executive must be same company or a subsidiary or affiliate of the company for which the foreign national was employed abroad.

Joint Ventures

If the US company is involved in a joint venture, they can qualify as an Eb1c green card petitioner as long as they have at least 50 percent ownership and control of the business.

US Branch Office

In the L1 context, an unincorporated US branch of a foreign company can qualify to sponsor a manager or executive. However, for the purposes of the Eb1c green card, an unincorporated branch office of a foreign company cannot sponsor a foreign national for permanent residence.

Sole Proprietorships

Unfortunately USCIS takes the position that sole proprietors do not qualify to file an Eb1c green card petition.

When Must the Qualifying Relationship Exist?

The qualifying corporate relationship must exist at the time of filing. However, there is no requirement that the relationship existed throughout the period of qualifying employment. For example, mergers, acquisitions and spinoffs do not necessary preclude a company from filing an Eb1c green card petition.

How to Prove a Qualifying Corporate Relationship

All organizations that apply for an Eb1c green card on behalf of their employees can submit a statement that highlights the ownership and control of each company. This statement is usually written by the President or CEO. However, it can also be executed by the corporate secretary, attorney or any other authorized official.

In addition to the statement, it is common for larger organizations to submit a copy of their most recent annual report, SEC filings or other documents that list the parent company and its related entities.

For the purpose of demonstrating the corporate relationship, many smaller businesses will provide the aforementioned statement as well as the following documentation…

  • records of stock ownership
  • profit and loss statements
  • accountant reports
  • tax returns
  • articles of incorporation
  • corporate bylaws
  • minutes from corporate meetings

doing business eb1c

Doing Business for Eb1c Purposes

Sadly, the entity in the US can not be a freshly hatched startup. The regulations require the US company to have been “doing business” in the US for at least a year. Doing business essentially means that there has been consistent sales and delivery of goods or services by the US entity. It is not sufficient to simply have an agent or office in the US.

Proof of doing business is oftentimes demonstrated in part by providing a statement from the company. Additionally, many successful petitions will include business licenses, leases, contracts, invoices, employment records, tax returns and promotional material that summarize the business operations in the US.

Qualifying Employment for the Eb1c Green Card

In order to qualify for an Eb1c green card, the Manager/Executive must have worked for the qualifying entity abroad for at least one year during the three years before the green card petition is filed.

However, the rule is slightly different if the employee is already working for the US employer(ie. on the L1 Visa). If this is the case, then the employee must have worked as a manager or executive for the qualifying entity abroad for at least one year in the three years before entering the US in nonimmigrant status.

For example, let’s say that the employee worked abroad for a qualifying entity as an executive from January 1, 2016-January 15, 2017. She then enters the US on an L1 Visa on February 1, 2017. Three years later, on February 1, 2020, her employer decides to file an Eb1c Green Card petition on her behalf. This is permissible since she worked for the entity for one year in the three years preceding the date of her entry into the US.

Managerial/Executive Duties

In order to qualify for an Eb1c green card the employees past employment abroad and the future employment in the US must be managerial or executive in nature.

Who Qualifies as a Manager for the Eb1c Green Card?

For Eb1c green card purposes, a manager is someone who is responsible for directing the activities and budget of a department, division, business unit or team. In order to qualify, the employee’s duties must involve management of other managers, professionals and/or technical specialists. Specifically, the duties will involve…

  • Managing the organization, department, division, function or component of the organization
  • Supervising and controlling the work of other supervisory, professional, or managerial employees
  • Possessing authority to hire and fire or recommend such actions for employees
  • Exercising discretion over the daily operations

No Front Line Managers for the Eb1c Green Card

It is important to understand that front line supervisors are not eligible for the Eb1c Green Card. A front line manager is someone who directs the work of employees who are not managers, professionals or technical specialists.

Since it is important to demonstrate that the beneficiary/employee is not a front line manager, all petitions should include detailed information. The information should include details regarding the duties and levels of the supervised employees. Additionally, details regarding the day to day activities of the manager for which the petition is being filed should be included. This information can help establish that the beneficiary primarily functions in a managerial capacity.

The Eb1c Function Manager

USCIS recognizes that many businesses employ high level managers who do not directly supervise the work of others. These “function managers”, are responsible for an essential function of the business. They primarily:

  • Manage the organization, or a department, subdivision, function or component of the organization
  • Manage an essential function within the organization
  • Work at a senior level within the structure of the organization
  • Exercise discretion over the day to day operations

Who Qualifies as an Executive for the Eb1c Green Card?

An executive(in the US immigration context) is someone who is responsible for directing multiple departments and divisions within a company. They will typically:

  • Direct the management or a major part of an organization
  • Establish goals and policies
  • Have wide discretion to make decisions for the organization
  • Receive only general supervision from higher level executives, the board of directors or stockholders

Demonstrating Executive or Management Duties

For both managers and executives seeking an Eb1c green card, it is important to demonstrate the employee/beneficiary’s work by providing a clear, detailed description of their day-to-day duties. This description should be accompanied by information that shows the percentage of time allocated to each job duty. Petitioners should understand that they cannot rely on the manager or executive’s title. Instead they must show that he or she functions as a manager or an executive and that there is sufficient personnel to carry out the day-to-day operations of the organization.

Proving Foreign Work Experience

In order to show that the manager/executive worked abroad for at least one year in a qualifying role, an Eb1c green card petition will oftentimes include a statement regarding the foreign employment. This statement should be on letterhead and include the signature of an authorized corporate official. Additionally, it would be wise to include pay and earnings statements for the period of employment abroad.

org chart eb1c

The Role of Organizational Charts

Although organizational charts are not explicitly required by the regulations they are typically submitted with the green card petition. They can be extremely helpful to the adjudicator by showing exactly where the manager or executive fits within the organizational hierarchy.

The organization charts for small companies typically include full names and job titles of all employees. Charts for larger companies will include details regarding employees in the beneficiary’s department. These charts should clearly show who carries out the day to day non managerial work so that the beneficiary is able to focus on higher level managerial or executive tasks.

Three Eb1c Problem Areas

The Eb1c generally receives a good deal of scrutiny from USCIS. However, in some situations, a petitioner will face greater challenges. This section will discuss three types of difficult cases and present possibilities for overcoming the challenges.

The Function Manager

Detailed Info is Key

It is much more difficult to demonstrate that someone is a function manager as opposed to a more traditional manager. As such, successful petitions for function managers must include extremely information regarding the beneficiary’s job duties abroad and in the US. One goal of this information will be to show that the beneficiary will primarily manage as opposed to perform the essential function of the organization.

USCIS Analysis of Function Managers

In determining if a person meets the definition of a functional manager, USCIS will conduct the following analysis:

  • Identify the essential function of the organization in which the employee operates. For example, finance, marketing, sales etc.
  • Determine the duties that are required to manage that part of the organization
  • Analyze whether those duties are managerial in nature

These additional factors will be considered by USCIS in analyzing whether an employee serves as a function manager:

  • Do they have the authority to initiate and veto activities relating to the function managed?
  • Do they have the authority to provide managerial guidance regarding the function?
  • Do they have the authority to set a course of action or determine the expenditure of funds with regards to the function?

A well composed Eb1c green card petition will include information that leads the adjudicator to the conclusion that the employee does in fact serve as a function manager.

The Small Business or Startup

When USCIS looks at an Eb1c green card petition, they will evaluate the need for a manager or executive. For small businesses and startups it can be difficult to show that the organization is substantial enough to require such a position. As anyone who has worked in a startup or small business can attest, employees oftentimes wear many hats. High level employees can be managing one day and conducting the day to day operations on the next day. This is problematic because USCIS wants to see that the daily operations are carried out by other non managerial or executive employees.

For small employees it is possible to demonstrate that day-to-day operations will be carried out by others. Those who perform daily activities can include contractors, consultants or other employees within the organization.

In order to show that other non managerial or executive employees handle the day to day operations, it is important to include a detailed explanation and evidence regarding independent contractors, employees and the daily activities that they perform. The more details that can be provided the greater the better.

The L1B Visa Holder

Like I mentioned earlier, many companies will initially transfer an employee to the United States on the L1 Visa. Then, after the manager or executive works for a while, they will sponsor him or her for an Eb1c green card. This can work nicely. However, a problem can arise when the L1 Visa documentation does not include managerial experience abroad.

This situation occasionally arises when an employee is going from the L1B to the Eb1c green card. For the L1 Visa there are two categories. The L1A is reserved for executives or managers. The L1B is meant for employees with specialized knowledge. So, if someone on an L1B Visa could have been classified as a manager or a specialized knowledge employee, they could still qualify for an Eb1c green card. However, if the L1 Visa documentation did not include information about the managerial or executive experience, the Eb1c petitioner will have a hurdle to overcome.

In order to overcome this hurdle, it is important to include a very detailed account of how the beneficiary’s experience abroad was in a managerial or executive capacity. This is difficult because a petitioner must demonstrate the managerial or executive experience while artfully blending in the specialized knowledge that served as the basis for the earlier L1 Visa petition.

 

The Filing Procedure

The procedure will vary depending on whether the employee is inside or outside of the United States.

If the employee is inside of the US and the visa category is current for their country of origin, a form I-140 along with form I-485 and supporting documentation can be filed.

If the employee is outside of the United States, the employer will file the I-140. Then, after approval, the employee will go through consular processing. This process involves includes submitting documentation, paying visa fees and attending an interview. Details regarding the process can be found on the Department of State’s website.

Conclusion

The Eb1c is a popular green card options for multinational executives and managers. Anyone who is considering this option for an employee should have a basic understanding of the requirements before speaking with a knowledgable immigration lawyer. Hopefully this guide helped you gain a basic understanding of the requirements and potential problems that can arise during the Eb1c Green Card process. Best wishes!

eb1c faqs

EB1C FAQs

1) A qualifying corporate relationship must exist between the US entity where the employee will be working and the foreign entity where the employee previously worked for at least one year as a manger or executive 2) The US entity must have been doing business for at least one year in the US 3) The employee’s work must have been in an executive or managerial capacity 4) The  job offer in the US must be for a managerial or executive position.

You can not file for Eb1c on your own. You can self petition for the Eb1a green card, the Eb2 green card(National Interest Waiver) and the Eb5(Investment based green card).

A manager is someone who supervises and controls the work of other supervisory, professional, or managerial employees; has authority to hire and fire or recommend such actions for employees; exercises discretion over the day-to-day operations

An executive is someone who directs an organization(or a major part of it); establishes goals and policies; has wide discretion to make decisions; receives only general supervision from higher level executives, the board of directors or stockholders.

The US company can be the same company, a subsidiary or an affiliate of the foreign company where the employee worked abroad.

Yes. If you manage an essential function of the organization, you may qualify as a function manager.

Typical documents to demonstrate the relationship include stock ownership records, a statement from a corporate officer, articles of incorporation, corporate bylaws, minutes from corporate meetings, profit and loss statements and tax returns.

An executive is someone who directs an organization(or a major part of it); establishes goals and policies; has wide discretion to make decisions; receives only general supervision from higher level executives, the board of directors or stockholders.

No. Although many people start on the L1A visa before their employer sponsors them for a green card, this is not a requirement.

A successful Eb1c application results in a green card. The L1 Visa is a non immigrant visa. Also, new offices and specialized knowledge employees qualify for the L1 Visa. While, they do not qualify for the Eb1c green card.

Yes, as long as they have been doing business for at least one year in the US.

Yes, but it will usually be more difficult for a smaller organization to show that they can support a high level manager or executive.

Doing business is defined as the “regular, systematic and continuous provision of goods or services…”

Doing business is oftentimes evidenced by business licenses, leases, tax returns and marketing materials.

In order to apply for the Eb1c, you will file form I-140 along with supporting documentation. 

Yes, as long as your visa category is current for your country of origin.

The filing fee for the I-485 and biometrics is currently $1225.

No. Unfortunately, it is not available for the Eb1c green card.

The filing fee for the I-140 is currently $700.

The answer to this question will depend on the current adjudication times and on visa availability for your country of origin. If your visa category is current and you are in the US on a valid visa, you will likely apply for adjustment of status. It is currently taking 4-6 months for the I-140 and 8-31 months for the I-485.

No! Many applicants who are successful in obtaining an L1 Visa are later denied at the green card stage.