EB-1 for Executives and Managers ⋆ Borene Law Firm, P.A.

Frequently Asked Questions about Permanent Residence for EB-1 Executives and Managers

By George C. Maxwell*

1. What is an EB-1 Executive or Manager Permanent Resident Petition?

An EB-1 Executive or Manager Petition can be a useful option for foreign executives or managers seeking permanent residence status in the U.S. The EB-1 Executive or Manager Petitions are for executive or managerial employees who will work in the U.S. for an employer that is legally affiliated with a company the employee has worked for outside of the United States.

2. When would an employer use an EB-1 Executive or Manager Petition?

The EB-1 Executive or Manager Permanent Resident category is appropriate for many situations where an employer wants to transfer an offshore executive or manager to a U.S. executive or management position that is likely to continue for more than one year. Usually, an EB-1 Executive or Managerial Permanent Resident Petition is filed by the employer after the executive or manager has entered the U.S. on an approved L-1A temporary nonimmigrant petition. Unlike the EB-2/EB-3 Professional and Advanced Degree permanent resident categories, the EB-1 Executive or Managerial category does not require a bachelor degree or equivalent. Also, there are no specific minimum wage requirements. No labor certification demonstrating a job shortage in the position needs to be obtained from the U.S. Department of Labor.

3. What legal requirements must the employer satisfy to be eligible to file an EB-1 Executive or Manager Petition for its employee?

The foreign employer and the US employer must have a “qualifying relationship.” The relationship can be that of a parent, branch, subsidiary, or affiliate with common majority ownership, or common control by the same person or entity. The foreign employer must continue to be an active operating business. The intended U.S. job must in the position of a manager, or executive employee. Most typical managerial and executive positions may qualify, but the U.S. Citizenship and Immigration Services (USCIS) is less friendly to “first-line supervisors” of low-level employees, and to very small companies.

4. What legal requirements must the employee satisfy to be eligible for EB-1 Petition for an executive or manager?

The EB-1 executive or manager must have been continuously employed abroad for at least one of the last three years by the related employer outside the U.S., in a position meeting the L-1 definition of manager or executive employee. Individuals who have worked on an L visa may still qualify even if they have been in the U.S. longer than 3 years as long as the foreign affiliated company continues to do business and is still structurally affiliated with the U.S. Employer. The EB-1 executive or manager must meet the normal screening criteria for all applicants for permanent residence and adjustment of status. If a candidate has a history of immigration violations or serious criminal activities, the permanent residence adjustment or petition may be delayed or denied.

5. How long does it take to get approval for an EB-1 Petition for an executive or manager?

Recently, EB-1 I-140 petition processing times and I-485 applications to adjust to permanent residence have ranged from about six months to one year or more. For additional information on adjustment of status please see our Adjustment of Status FAQ. Each EB-1 petition is based upon facts specific to the individual candidate, the related employing entities and the position. Recently created entities, employers with complex affiliate relationships, or positions other than top management may require significant additional legal preparation time. If the candidate is outside the United States, processing time can be increased while the U.S. government collects necessary documents for the immigrant visa interview and completes security clearances at the U.S. consulate.

6. How much administrative work by the employer is required?

The administrative burden connected with EB-1’s is often substantially less than that connected with other employment-based permanent residence pathways such as EB-2/EB-3 or Labor Certification. The employer must review and sign government forms, and provide additional relevant documentary evidence, but usually the employer does not need to maintain special documentation beyond that required for other employees. A typical EB-1 case may take a few hours of a human resource staff member’s time.

7. What government agencies are involved?

The USCIS is responsible for examining I-140 EB-1 petitions. Depending on the location of the job site, the petition must be filed at one of two USCIS Regional Service Centers. For employees working in the Midwest and West, EB-1 I-140 petitions are filed at the USCIS Service Center in Lincoln, Nebraska. Other petitions are filed at the Regional Service Center in Texas. If the candidate is outside the United States, the U.S. Department of State may also be involved in the process.

8. What is the role of the employer in the process?

The employer must provide basic information about the EB-1 worker’s intended job duties, the legal relationship between the foreign and U.S. entities, and the employer’s financial condition. We will also likely need supporting documents establishing the legal and financial relationship between the foreign and U.S. entity and the executive and managerial nature of the positions in the U.S. and in the positions outside the U.S. Typically, the employer will need to complete a short one-page questionnaire, then review and sign a draft form and support letter that we will submit to the government on the employer’s behalf.

9. What is the role of the immigration lawyer in the process?

The lawyer typically leads the EB-1 processing efforts. First, he or she will review the terms of employment, the candidate’s immigration & employment history, and the relationship between the U.S. and foreign entities, to estimate the viability of the EB-1 petition and estimate an initial time frame for preparation and processing. An experienced immigration lawyer can help identify strategy options and assist the employer in choosing a good strategy; gather and analyze evidence for suitability; draft forms and supporting letters to increase the probability of approval and reduce the risk of delay or denial, and evaluate possible processing complications. The immigration lawyer also will consult with the employer and employee as needed to coordinate visa application & travel plans, explain legal requirements and procedural matters. The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the file is closed. On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that may be needed to continue the employment relationship without interruption.

10. Does just the filing of the EB-1 I-140 Petition itself provide employment authorization?

No. However, the employer can seek temporary immigrant work authorization for the executive or manager using an L category petition or using some other valid temporary work visa option. Alternatively, if the executive or manager is legally in the United States and an application to adjust status to permanent residence is filed jointly with the employer’s I-140 EB-1 petition, the executive or manager may also file and request employment authorization while the application is pending. Because of growing backlogs and processing delays at USCIS, it may take 4 months or longer for the employment authorization request to be processed. For additional details see our FAQ on Adjustment of Status.

11. Is there a minimum salary requirement?

No. However, EB-1’s are intended for executive and managerial employees. An unusually low salary could lead to extra review of the petition and a reduced chance of approval.

12. Who usually pays the filing fees?

Anyone or any entity may pay the filing fee. In most cases, the employer chooses to pay the filing fee, but the employer is not required to do so.

13. Who usually pays the legal expenses?

Since the employer is the EB-1 petitioner, the employer generally pays the legal costs and related expenses. The law does not prohibit reimbursement by the employee.

14. Can the EB-1 employee’s spouse and children also obtain permanent residence?

Yes. EB-1 workers’ immediate family members also may obtain permanent residence as dependents of the EB-1 Principal Applicant. A separate adjustment of status application for the spouse and unmarried children under 21 years of age is customary.

Also known as EB1.

*George C. Maxwell is an Attorney with Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Mr. Maxwell concentrates his immigration practice primarily on employment-related and business immigration matters. He is a past Chair of the Minnesota State Bar Association Immigration Section. He is currently Chair of the International Business Law Section of the Minnesota State Bar Association and Vice Chair of the American Immigration Lawyers Association (AILA) Minnesota/Dakotas Chapter. Mr. Maxwell speaks and writes frequently on immigration law topics. He authored Tips and Traps: Managing I-94 Complications, Bench and Bar, 2015, published by the Minnesota State Bar Association. In 2009, he was co-presenter at the Hennepin County Bar Association – Employment Law Section meeting on “Immigration Law for Employment Lawyers.” Also, in 2009, he was the author of Looking for World Class Talent? 20,000 U.S. Work Visas Remain for Newly-Hired Professionals, published in Bench and Bar. Prior to joining the firm, Mr. Maxwell worked first as an attorney for ExxonMobil Corporation at Exxon’s corporate headquarters in Houston, Texas, and then for the Willkie Farr & Gallagher law firm in Washington, D.C. and for the Dorsey & Whitney law firm in Minneapolis. In addition to his extensive experience in immigration law, he has significant experience in international human rights litigation, business litigation, corporate internal investigations, and white collar enforcement and compliance. His prior legal work has taken him to Russia, Central Asia, Latin America, and Southeast Asia. Mr. Maxwell graduated with High Distinction from the University of Iowa Law School. He was a Note and Comment Editor for the Iowa Law School’s Transnational and Contemporary Problems Journal. He also holds a Bachelor of Arts degree from the University of Northern Iowa, and upon graduation received the Purple and Old Gold Award for Meritorious Scholarship in Russian. He speaks both English and Russian. Mr. Maxwell is authorized by federal law and regulation to represent clients before all U.S. immigration courts and offices worldwide. He is admitted to practice before the Minnesota Supreme Court and the United States District Court for the District of Minnesota. He is also admitted to the Bar of the District of Columbia, in Washington, DC. He can be reached at gmaxwell@borene.com.