TO THE LAW OFFICE OF JIAN X. KANG
SUMMARY OF THE LAW ON EB-13
(Multinational Executive or Manager)
The Immigration and Naturalization Act (INA), § 203(b)(1)(C) provides for the immigration of an alien as a multinational executive or manager. It requires that the alien (1) in the 3 years preceding the time of the alien's application for classification and admission into the United States as a multinational executive or manager, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and (2) seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.
INA § 101(a)(44)(A) and 8 CFR § 204.5(j) both define "Managerial capacity" to mean an assignment within an organization in which the employee primarily --
manages the organization, or a department, subdivision, function, or component of the organization;
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;
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
exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.
INA §101(a)(44)(B) and 8 CFR § 204.5(j) define "executive capacity" to mean an assignment within an organization in which the employee primarily --
directs the management of the organization or a major component or function of the organization;
establishes the goals and policies of the organization, component, or function;
exercises wide latitude in discretionary decision-making; and
receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
In the event that staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, INA 101(a)(44)(C) provides, "the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function. An individual shall not be considered to be acting in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed."
8 CFR § 204.5(j)(2) further provides the following definitions:
One of two subsidiaries both of which are owned and controlled by the same parent or individual;
One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity; or
In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.
"Doing business" means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or office.
"Multinational" means that the qualifying entity, or its affiliate or subsidiary, conducts business in two or more countries, one of which is the United States.
"Subsidiary" means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
Under 8 FCR § 204.5(j)(3), a petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:
If the alien is outside the United States, in the three years immediately preceding the filing of the petition the alien has been employed outside the United States for at least one year in a managerial or executive capacity by a firm or corporation, or other legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or
If the alien is 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 the alien was employed overseas, in the three years preceding entry as a nonimmigrant, the alien was employed by the entity abroad for at least one year in a managerial or executive capacity;
The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas; and
The prospective United States employer has been doing business for at least one year.
§ 204.5(j)(3)(ii) provides that, in appropriate cases, the director may request additional evidence. In fact, additional evidence such as various business records a invariably required for such petitions by the government.
The most appealing aspect for filing such a petition is that, under § 204.5(j)(5), no labor certification is required. This means that the employer and the alien do not have to go through the lengthy labor certification process which often takes 2-3 years. However, the prospective employer in the United States must furnish a job offer in the form of a statement, which indicates that the alien is to be employed in the United States in a managerial or executive capacity and clearly describes the duties to be performed by the alien. Generally, this should not be a problem for the employer.
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Jian X. Kang
Attorney at law
LAW OFFICES OF JIAN X. KANG
7670 OPPORTUNITY ROAD, SUITE 225, SAN DIEGO, CA 92111