EMPLOYMENT BASED IMMIGRATION INTERNATIONAL EXECUTIVE AND MANAGERIAL TRANSFEREE
This sub-category of the First Preference category is designed for certain multinational executives and managers who transfer from a foreign company to a subsidiary, parent or affiliate U.S. company.
The transferee must have worked for the foreign company for one continuous year within the preceding three years before he or she transferred to the United States. Both the U.S. Company and the related foreign company must be doing business.
This employment based preference category lets you enjoy a significant advantage compared to the other employment based categories. Labor Certification (PERM) is not required.
Since 1990, those individuals from most countries, except China and India, were allowed to file their petitions and applications immediately without having to wait for numerical availability. Furthermore, the immediate availability of this category will continue for individuals from most countries.
Finally, spouse and children (under 21 and not married) are eligible to obtain permanent residency as derivatives if accompanying the main beneficiary.
THE QUALIFYING MULTINATIONAL RELATIONSHIP
The petitioner must be a U.S employer that is an affiliate, a subsidiary, or the same employer as the firm, corporation, or other legal entity that employed the alien abroad.
An affiliate is defined as one of two subsidiaries that is owned or controlled by the same parent or individual, or by group of individuals, as long as each of them owns and controls approximately the same or percentage of each entity.
In addition, the term affiliate includes a certain international accounting firms that market accounting services under an internationally recognized name.
Subsidiaries include direct or indirect ownership of at least half of another entity, ownership of 50 percent of a 50/50 joint venture with equal control veto power, or ownership of less than 50 percent of an entity with de facto control.
MANAGERIAL OR EXECUTIVE CAPACITY
The beneficiary’s qualifying experience and position offered in the United States must be in a managerial or executive capacity. The definitions of manager and executive are critical in formulating a case.
Managerial capacity is an assignment in which the employee primarily:
- Manages the organization or department, subdivision, function, or component of the organization.
- Supervises and control 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 like 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.
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
A managerial position does not necessarily require management of staff because management of a function is enough. However, the regulations specify that first-line supervisors are not deemed to meet the definition of managerial capacity unless those supervised are professionals.
Executive capacity means 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;
- Receives general supervision or direction from high level executives, the board of directors, or stockholders of the organization.
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