The multi-national executive or manager is a direct path to residency in the United States for any company seeking to move key personnel to the United States from abroad.
The term multi-national
The Immigration & Nationality Act defines a "multinational business" as one that conducts business in two or more countries, and one of the countries is the United States. The law also requires that the business have been operating in the U.S. for a minimum of one year before it petitions on behalf of anyone.
Another vital requirement is that the foreign company and company in the United States must have a legal relationship with each other, even if the relationship is one of affiliation through a third company in-between. A person who is the primary shareholder of the United States and the foreign company can also fulfill this requirement.
The last requirement is that the foreign company must continue to operate after the transfer occurs. Thus, for smaller companies, this option is workable if the company abroad can continue to function without the key personnel after the transfer.
The relationship between the employee and the foreign company
Attaining permanent residency through a multinational corporation is quite similar to the process of obtaining an L-1 visa.
If the foreign national is outside the United States, he or she must have been employed outside the U.S. for at least one year in the past three years in a managerial or executive capacity by a firm or corporation or other legal entity or by its affiliate or subsidiary.
If the foreign national is already in the United States and working for the same employer, whether for a subsidiary or affiliate, he or she must have been employed by the company abroad in a managerial or executive capacity for at least one year in the three years preceding his or her entry as a nonimmigrant into the United States.
Necessary duties to qualify as a manager or executive
An employee is an executive if the person directs a division of the company. This includes establishing the goals and policies of the organization or division, exercising wide latitude in decision-making, and operating with minimal supervision from others.
A person qualifies as a manager if he or she manages the organization or a division of the company. Some examples of acceptable duties include:
• supervise and control the work of other supervisory, professional, or managerial employees, including the authority to hire and fire others; or,
• manages an essential function within the organization. If the foreign national does not directly supervise other employees, then he or she must perform at a senior level within the company or direct some part of the day-to-day operations. A first line supervisor cannot be considered a manager unless the supervised employees are professionals.
Difference from the extraordinary ability category
The primary difference is that an individual possessing extraordinary ability may self-petition, whereas a multinational executive or manager must rely on his or her employer to petition for him or her.
No labor certification application required
The multi-national manager or executive category is exempt from the labor certification application requirement. This is a tremendous advantage of this category. The petitioning employer must also submit evidence establishing the corporate relationship between the U.S. firm and its foreign counterpart. Lastly, the petition must contain documentation showing that the individual is able to perform the job duties and the duties that the person will perform meet the governing legal standards.
Wilson Law Group has years of experience with devising long-term international personnel transition strategies for employers and employees. We invite you to contact us to discuss whether this path to residency in the United States is suitable for you or your company.