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EB-1: Multinational Executives and Managers

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EB-1: Multinational Executives and Managers
Multinational Executives and Managers is another category within the EB-1 classification. Unlike the EB-1 Persons of Extraordinary Ability category, candidates for the Multinational Executives and Managers category must have an offer of employment from the sponsoring employer. A candidate must also meet the following standards to qualify:

  1. Employed abroad for one year within the last three years by the firm or corporation for which they work in the U.S., or a subsidiary or affiliate of that company. If the applicant has been in the U.S. for more than three years in valid status, then the government will consider employment abroad during the three year period before the applicant entered the U.S.
  2. For the required one year of the last three years abroad, the applicant must have been working in an executive or managerial capacity for the U.S. employer or a subsidiary of affiliate.
  3. For the U.S. job offer going forward, the applicant must be working in a capacity that is managerial or executive for the same employer or a subsidiary or affiliate of the overseas employer.

Given these requirements, the most important standard for this category is the definition of executive or managerial capacity.

Executive capacity means the applicant:

  • Directs the management of the company or a component or function within the company;
  • Establishes goals and policies for the company as a whole or a large division or component;
  • Exercises wide latitude in discretionary decision making, including in such areas as budgetary matters or client relations;
  • Receives only general direction from higher level executives, stockholders and board of directors. In other words, the applicant is generally responsible for setting his/her tasks and priorities without direct assignment from other employees.

Managerial capacity is generally defined in terms of one of two sub-divided categories: traditional managers and functional managers.

A Traditional Manager

  • Manages the organization, department, subdivision or component;
  • Supervises and controls the work of other supervisory, professional or managerial employees;
  • Has the authority to hire and fire or recommend personnel actions; and
  • Exercises discretion over day-to-day operations of the relevant subdivision, group or component.

A Functional Manager

  • Manages “an essential function” or operation within the organization;
  • Does not directly supervise other employees, but functions at a senior level;
  • Exercises discretion over the day-to-day operations of an essential function.

Note that it is generally more straightforward to prove a traditional manager case. A functional manager must demonstrate the importance of the function that they manage, i.e. through evidence including the centrality of the function to the company’s overall revenue stream, or other evidence showing that the relevant function is not mid-level but very important to the overall health of the company.

First line supervisors such as Team Leads are often not considered multinational managers by the government. This is often because the relevant position must be primarily managerial, and Team Leads often spend a significant portion of their time performing non-managerial tasks, such as duties directly related to developing a product. Moreover, the employees that are being supervised must at least be professionals, usually defined as college-educated workers in a specialty field. A stronger case is one in which the applicant manages other supervisors, such as a Development Manager who actually manages Team Leads. It is therefore necessary that an applicant’s case be carefully presented and documented to meet the appropriate standard.

Additional Considerations about the Managerial Category:

Some applicants assume that because they have an L-1A visa (nonimmigrant visa for employees working in a managerial or executive capacity), they automatically qualify for the Multinational Manager designation. This is not so. Based on the patterns of government adjudication, the Multinational Manager category has a higher standard of proof, as the expected benefit of permanent residence is more valuable than the temporary permission to work offered by the L-1A visa. In fact, there is a 2003 federal court case that found that it was acceptable for the government to deny the Multinational Manger designation for a position that it subsequently granted L-1A visas for.

On the bright side, we present the following hypothetical situation in which an applicant would be eligible for the Multinational Manager category: an applicant who was a manager abroad during the required one of three years before entry, but came to the U.S. on an L-1B visa, and is then being promoted to a managerial position in the United States. This person would qualify because he/she worked as a manager abroad, and the U.S. position going forward is managerial in nature. It is not a bar to the Multinational Manager category if the initial period of work in the U.S. was as a specialty worker, for example as a computer programmer.

The attorneys at the Law Offices of Arjun Verma have experience representing applicants in the Multinational Executives and Managers category. For an evaluation of whether you would meet the relevant standards and advice about how to best document your case, please contact us.

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