Multinational Executive or Manager
I. OVERVIEW
The third category of Employment-Based First Preference (EB-1), is Multinational Executive or Manager.
II. THE EMPLOYER REQUIREMENTS
Under this category, the employer must file the petition for the person, and the employer must be a legal entity such as a firm, a corporation, or an affiliate or subsidiary of the employer. Furthermore, the employer must have done business in the U.S. for at least a year, and that both the U.S. division and the foreign division must be doing business on a regular, systematic and continual basis.
III. THE PETITION REQUIREMENTS
When filing the petition, the petition must prove three requirements. First, the person has worked for the employer for at least 1 year in the preceding 3 years, at the time of the filing. Second, the person must continue to work for the same employer, or affiliate or subsidiary. Third, the person must have been working for the employer in a managerial or executive capacity before entering the U.S., and continues to work in the same capacity once in the U.S.
U.S. Citizenship and Immigration Services (USCIS) does not allow first-line supervisor to qualify under this category, and has much discretion in determining whether the person is actually working in a managerial or executive capacity. To qualify as “managerial capacity” the person must primarily:
(i) manages the organization or a component of the organization;
(ii) supervises and controls the work of others;
(iii) if supervising employees directly, has the authority to hire and fire employees or have other authorities, or if not supervising employees directly, functions at a senior level within the organization; and
(iv) exercises discretion over the day-to-day operations. A first-line supervisor is not acting in a managerial capacity by merely doing supervisor’s supervisory duties, unless the employees supervised are professional.
(Section 101(a)(44)(A) of the Immigration and Nationality Act)
The term “executive capacity” means that the person primarily:
(i) directs the management of at least part of the organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
(Section 101(a)(44)(B) of the Immigration and Nationality Act)
A person who primarily performs the tasks necessary to produce a product, or to provide services, is not considered to be employed in a managerial or executive capacity. Operational tasks such as to develop, design, market, and sell the employer’s products do not qualify as managerial or executive duties neither. Other relevant factors considered by USCIS when making the decision are the nature of the business of the employer, and the number of employees employed by the employer. The above requirements for Multinational Executive or Manager are similar to the requirements for L-1 nonimmigrant, with the exception that “specialized knowledge” is not required under EB-1. Thus, in the petition, if the person entered the U.S. on L-1 status, then the person will generally qualify for EB-1 through the Multinational Executive or Manager category.