EB-1-3: Certain Multinational Executives and Managers

The EB-1-3 or “Certain Multinational Executives and Managers” immigrant classification is an often overlooked option for many people seeking permanent residence in the United States. In fact, the requirements for an EB-1-3 application are very similar to those of the L-1A “Intracompany Transferee” nonimmigrant classification. Thus, for people currently working in the United States in L-1 status, an EB-1-3 petition is a particularly viable option.

One of the biggest advantages of the EB-1-3 category is that an applicant does not need to go through the lengthy and burdensome process of labor certification. The only requirement in this regard is that the prospective employer must furnish a job offer stating that the applicant will be employed in the United States in a managerial or executive capacity.

Generally, the EB-1-3 classification is for executives or managers who have worked in an overseas office of a company which has branches both in the United States and abroad. The executive or manager must be coming to the U.S. to work for the same company (or an affiliate or subsidiary) in an executive or managerial “capacity” (see discussion below). Additionally, the prospective U.S. employer must have been doing business for at least one year. Thus, a successful EB-1-3 application allows a manager or executive in a multinational company to transfer to his company’s U.S. office and attain a “green card”. 

One of the requirements for an EB-1-3 petition is that the alien have worked at an overseas office of the company for a one-year period. To determine the exact nature of this one-year requirement, an applicant must first determine where they will be when the EB-1-3 petition is filed.

§         If you will not be in the U.S. upon filing of the petition - then in the three years immediately preceding the filing of the petition you must have been employed outside the United States for at least one year in a managerial or executive capacity by the company (or by an affiliate or subsidiary of the company)

§         If you will be in the U.S. upon filing of the petition - if you are already in the United States working for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by which you were employed overseas, in the three years preceding entry as a nonimmigrant, you must have been employed by the entity abroad for at least one year in a managerial or executive capacity

As noted above, there is a requirement that your work be in an executive or managerial “capacity”. In fact, this is one of the more complicated aspects of applying for EB-1-3 classification. Making clear that your work at the company has and will be in an executive or managerial capacity is crucially important to filing a successful EB-1-3 petition.  

“Executive capacity” means a job in which the employee primarily:

(a)    directs the management of the organization or a major component or function of the organization;

(b)   establishes the goals and policies of the organization, component, or function;

(c)    exercises wide latitude in discretionary decision making; and

(d)   receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

“Managerial capacity” means a job in which the employee primarily:

(a)    manages the organization, or a department, subdivision, function, or component of the organization;

(b)   supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(c)    if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(d)   exercises direction over the day-to-day operations of the activity or function for which the employee has authority.

EB-1-3 applications are an excellent, yet often overlooked, way for managers and executives of multinational companies to attain permanent residency in the United States. As noted above, people currently working in the U.S. in L-1A status are particularly good candidates as many of the requirements for EB-1-3 and L1-A classification are similar. If you should have any questions regarding the EB-1-3 category or a potential EB-1-3 application, please contact our office at information@lianglaw.com and one of our attorneys will be glad to answer your inquiries.

Brian Spalter(林伯恩)律師小檔案

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