Intra-Company Transfers

Multinational Executive and Managers

Section 203 (b)(1)(C) of the INA

By Steven D. Heller and Allen E. Kaye

The EB-1-3 category of immigrant visas for multinational executives and managers mirrors the L-1A visa category and is a useful means of maintaining valued non-US personnel at US offices of multinational companies. The L-1 visa category was established to facilitate the transfer or rotation of foreign personnel of an international company into the United States. Although originally targeted toward large U.S. multi-national corporations, this is an appropriate method for companies of all sizes to seek immediate immigration benefits for their qualifying employees. Below, we discuss the common elements of the L-1 and EB-1, highlighting the particular benefits and requirements of each.

DEFINITIONS

1. Managerial Capacity: Refers to an assignment within an organization in which the employee primarily:
   1. Manages the organization or a department, subdivision, function, component, or,
   2. 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 thereof;
   3. has the authority to hire and fire or recommend those actions (promotion, leave authorization, etc.) if another employee or other employees are directly supervised; 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 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 supervisory duties unless the employees supervised are professional.
2. Executive Capacity: Refers to an assignment within an organization in which the employee primarily
   1. directs the management of the organization or major component or function thereof;
   2. establishes the rules and policies of the organization, components, or functions;
   3. exercises wide latitude in discretionary decision-making; and,
   4. receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.
3. Specialized Knowledge: This is knowledge, possessed by an individual, of the U.S. employers product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise of the employers processes and procedures.
4. Qualifying Organization: This refers to a U.S. or foreign firm, corporation, or other legal entity which is, or will be, doing business as an employer in the U.S. and in at least one other country, directly or through a parent, branch, affiliate, or subsidiary, for the duration of the foreign nationals stay in the U.S. as an intra-company transferee, and which meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate, or subsidiary.
5. Parent: A firm, corporation, or other legal entity which has subsidiaries.
6. Branch: An operating division or office of the same organization housed in a different location.
7. Subsidiary: 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, fifty percent of a fifty-fifty 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.
8. Affiliate: One of two subsidiaries, both of which are owned and controlled by the same parent or individual, or 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. The paramount issue is that of control. if A & B each own 26% of both the U.S. and foreign entities, it is irrelevant who owns the remaining 48% of either organization.
9. New Office in the U.S.: An organization which has been doing business in the U.S. through a parent, branch, affiliate or a subsidiary for less than one year. (N.b. only the L-1 visa is available to new office staff).
10. Doing Business: The regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include, the mere presence of an agent or office of the qualifying or organization in the U.S. and abroad.

The words used in the governing statutes and regulations are carefully defined. Your organization and the individual worker to be transferred must fit exactly within each relevant definition. For example, for the L-1 category, the requirement that the employee has worked for the foreign entity for one out of the three years immediately preceding his entry in L-1 status means 12 consecutive calendar months; not 11 or even 11 1/2. The three years before entry means just that. If a worker was employed by the foreign organization 3-1/2 years ago, and left that employer 2-1/2 years ago, s/he does NOT qualify. Similarly, for a front-line supervisor to be considered a “manager,” s/he must supervise “professionals;” specifically, that those supervised must hold a baccalaureate degree (4 years of college) and be doing work which normally requires that degree in order to enter the field.

Thus, it is extremely important to consult with your attorney to insure that each of the requirements have been properly evaluated before taking any further steps toward obtaining the visa.