An executive or a manager who meets the legal requirements of the Immigration and Nationality Act (“INA”) §203(b)(1)(C) can immigrate to the U.S. expeditiously, without having to file a labor certification. In other words, neither the beneficiary nor his employer needs to prove a lack of qualified U.S. workers to the State Workforce Agency or the Department of Labor before the beneficiary is permitted to file his/her adjustment of status application for permanent residency in the U.S.
The foreign national must have been employed for at least one year (during the last three years) by the petitioning firm or corporation or other legal entity or an affiliate or subsidiary thereof. The “one of three year requirement” may be met even if the person is in U.S. for more than three years if he is working for the same employer, affiliate, or subsidiary in U.S. and was employed for at least one of the last three years by the same company abroad before entering U.S. in valid nonimmigrant status.
The applicant must be seeking to enter the U.S. 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. (Unlike the L-1B nonimmigrant category, this immigrant category is not designed for applicants with specialized knowledge.)
Managerial and executive capacity defined [INA §101(a)(44); 8 C.F.R. §204.5(j)(2)]:
Managerial capacity means an assignment with the organization in which the employee personally:
- manages the organization, department, subdivision, function or component;
- supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization;
- has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and
- exercises discretion over day-to-day operations of the activity or function.
First line supervisors are not considered managers unless the employees they supervise are professional.
Executive capacity means an assignment in an organization in which the employee primarily:
- directs the management of the organization or a component or function;
- establishes goals and policies;
- exercises wide latitude in discretionary decision making; and
- receives only general supervision or direction from higher level executives, board of directors or stockholders.
In determining whether an individual is acting in a managerial or executive capacity, USCIS will 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. The actual number of employees supervised is not a determinative factor.
Initial Evidence [8 C.F.R. §204.5(j)]:
The petitioner should make a statement concerning the person’s employment with the company for one of the past three years and that U.S. employer has been doing business for at least one year. Also, the U.S. employer should demonstrate the reasonable need for the foreign national in the organization in light of the overall purpose and stage of business development.
The employer must provide a job offer in the form of a statement describing the duties of the position and the capacity in which the beneficiary will be employed. If petitioner is seeking to assert that the person is a manager of an essential function, it must still provide sufficient evidence that the beneficiary is working “primarily” as a manager.
The petition must show that the company is operating abroad. If the foreign entity stops operating prior to filing this petition, the beneficiary becomes ineligible for this status.
The petition must also show that the U.S. company is not a “passive” corporation, but is active, conducting substantial business, and truly needs an executive or manager.