VISA SPOTLIGHT: EB-1 MULTINATIONAL EXECUTIVES AND MANAGERS
Permanent residency is available in the EB-1-3 category for executives and managers coming to work in the US for an employer that is related to a company the applicant worked for prior to entering the US. The category is very similar to the L-1 intra-company transfer non-immigrant category, though there are some important differences.

There are a number of requirements to qualify in this category.

First, the applicant must be continuously employed abroad for one year of the last three for a parent, affiliate, or subsidiary of a US employer. The employer may be a company or other legal entity including a profit, non-profit, religious, or charitable organization. It does not matter if the company is incorporated or not. Any time spent working in the US will count toward.

The one year of required employment, though time spent in the US will not be considered to have disrupted the continuity of employment abroad. It is possible to use a combination of part-time employment for affiliated companies under certain circumstances.

Second, the applicant must be coming to work for the same employer as the foreign employer or the US affiliate, parent, or subsidiary. The US and the foreign firm must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity. Ownership by a common group of owners where no owner has control or a majority interest can cause a problem if each individual owner does not own the approximately the same amount of both the US and the foreign company. This problem can sometimes be worked around if the owners have set up a voting agreement to ensure that there are not different groups controlling the foreign firm and the US firm.

Third, the applicant must be coming as a manager or executive (note that unlike the L-1 visa, “specialized knowledge” employees do not qualify in this EB-1 category and those whose experience abroad is as a specialized knowledge worker will not qualify even if they are coming over to work as a manager or executive).

An “executive is one who directs the management of the company or a major part or function of the organization. Typical executive positions are presidents, vice- presidents and controller. An executive is expected to have a supervisory role in the company (either over personnel or a function) and would not include people who are primarily performing the specific tasks of production or providing service to customers. A “manager” directs the organization, a department, or a function of the organization. Like executives, a qualifying manager will not be overseeing the primary performance of a task. Exceptions apply when a manager or executive is coming to open a new office.

Persons coming to open up a new office in the US will not be eligible for EB-1 status until the new office has operated for more than a year (there does not appear any basis in the law for this, but the INS requires it in its implementing regulations).

The EB-1-3 green card is attractive because it is fast, there is no labor certification required, the INS has less leeway to deny if the applicant meets all the regulatory requirements and one without a university education or massive amounts of money can still qualify.