The petitioning U.S. employer must have the right legal relationship with its overseas counterpart, in that it must either be a subsidiary, affiliate or parent of the manager or executive’s overseas employer. Alternatively, the U.S. corporation and overseas employer must have the same ownership structure, or division of control.
Further, the position being offered the foreign national must be as a manager or executive, and the petitioned worker must have worked in such a capacity for the corresponding overseas company and for at least 1 year in the 3 year period leading up to the petition.
In documenting a worker’s managerial or executive roles, US CIS will require the petitioning company to provide substantial documentation and details. For a manager, the petition must confirm the worker managed a function or department within the company overseas, oversaw the work of subordinates, had the authority to hire and terminate employees under their supervision and/or otherwise controlled the day to day duties and terms of employment of their charges. Importantly though, to qualify as a manager, a worker need not have had a large, or even small number, of charges – just that they managed an “essential function” within the company.
Also noteworthy is the fact that for an EB-1-3 (EB-1-C) petition to be successful the parties must also be able to document the petitioned worker’s overseas AND prospective U.S. roles as a manager or executive.
The essential ingredients of an approvable EB-1-3 petition must include:
- A detailed documentation and explanations confirming the worker’s overseas executive or managerial roles and their prospective U.S. duties as a manager or executive,
- The worker’s educational and/or professional credentials as well as
- Evidence of the petitioned employee’s compensation from the overseas corporation. Also essential is the presentation of documentation confirming the active, day to day operations of the overseas employer and viability of the U.S. employer, including the U.S. petitioner’s license to conduct business, evidence of incorporation, organization charts, as well as tax, banking and other financial documents.
Following I-140 petition approval, a decision will be required whether the worker and any qualifying dependent family members will undergo the final processing of their resident status in the U.S., via an I-485 Application for Adjustment of Status, or via immigrant visa processing at a U.S. consular post in the worker’s home country.
However the parties decide to proceed, having experienced immigration counsel on your side, such as Richard Hanus of the Law Offices of Richard Hanus, can enhance the chances of success of any I-140 petition filing, and keep the process as user friendly as possible.