The 'Magnificent 7' benefits of the EB-1(C)

Seven key advantages of the EB-1(C) over the EB-5 and other visas

by Jeffrey C.P. Wang and Rita Eng Bates

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* This article first appeared in Inside Counsel Magazine on October 29, 2014: http://bit.ly/1D3n2K5

Many Chinese investors have come to view the EB-5 visa as a "gold path" to a green card. This belief has led to an explosion in the demand for EB-5 visas, and those coming from China now account for about 85 percent of the visas issued in this category. However, investors should be aware that obtaining an EB-5 visa involves much more than simply writing a check. The provisions of the EB-5 program can be difficult to satisfy, and an EB-5 investment can involve considerable risk!

Qualifying for an EB-5 visa not only requires that one invest at least $1,000,000 in a new commercial enterprise (or $500,000 in a targeted employment area [TEA]), but that the entire investment must be put at risk. That is, neither the return nor the rate of return of any part of the investment can be guaranteed. Further, investors must fully document the lawful source of every cent of the investment funds. And last, but not least, the petitioner must show that this investment creates 10 full-time jobs.

Fortunately, there is another type of immigrant visa that is designed for high-level managers or executives of multinational companies that does not entail such requirements. This visa, called the EB-1(C) visa, is a sub-category of the Employment-Based Immigration: First Preference (EB-1). While the EB-5 is intended to attract foreign capital and reduce unemployment, the EB-1(C) is intended to attract knowledge and expertise.

A brief overview of the EB-1(C)

The EB-1(C) allows qualifying employers to transfer high-level managers or executives from abroad to the U.S. The U.S. company must provide a detailed statement, as well as other documentation, that shows they have a corporate structure and business operations that will allow the transferee to serve in a high-level managerial or executive capacity, and that the employer is financially able to pay the beneficiary's salary. The primary requirements that must be satisfied to qualify for the EB-1(C) are the following:

1. The petitioner (the U.S. employer): The petitioning U.S. employer and the foreign employer must be the same business, or they must at least be related as an affiliate, parent or subsidiary, and this relationship must have been in existence for at least one year.

2. The beneficiary (the transferring foreign employee): The transferee must have been employed by the foreign employer (or its affiliate or subsidiary) outside the United States in the 3 years preceding the filing of the immigrant petition as a manager or executive for at least one year.

7 key advantages of the EB-1(C)

1. There is no $1,000,000 (or $500,000) investment requirement. For the EB-1(C), there is no strict statutory minimum investment. The petitioning U.S. company primarily needs to demonstrate that it is properly capitalized within its industry, which includes being able to show that it will be able to maintain operations for two to three years. If an EB-5 investment is just one dollar short of the required minimum amount, on the other hand, one is statutorily ineligible for a green card.

2. There is no heavy duty money tracing requirement. For the EB-1(C), neither the petitioner nor the transferee is put under a microscope and required to provide a money trail all the way back to the original source of the investment funds. The chief requirement is that U.S. company show that the investment funds came from the parent company, and that the parent company is legitimate and viable. For the EB-5, providing thorough documentation for a $1,000,000 investment can be very difficult and expensive, especially where the funds are derived from multiple sources.

3. There is no "new job creation" requirement. While the EB-5 requires the creation of 10 new permanent full-time positions, the only job-related requirements for the EB-1(C) are that the position being offered involves the supervision of other professional employees. This means that the job must be more than that of a front-line supervisor. The transferee, in turn, must be qualified to serve in such a capacity.

4. There is no labor certification requirement. Those who qualify for the EB-1(C) may forego the labor certification process. Labor certification can be expensive and time-consuming.

5. There is no "conditional" green card period. For the EB-1(C), once permanent residency is attained, it is unconditional at the outset. Those in the EB-5 category, however, must undergo an initial two-year "conditional" green card period. At the end of this period, an additional filing is required demonstrating that all of the investment and job creation provisions have been fulfilled.

6. The employer does most of the work. A big plus for EB-1(C) beneficiaries is that it is the sponsoring employer that must provide most of the documentation and pay all of the filing fees. For an EB-5 immigrant investor visa, there is no sponsor. EB-5 investors must pay all required fees and complete every step of the petition process themselves.

7. There is no backlog for the EB-1(C). Immigrant visas are current for the EB-1(C) for all countries, so there are no expected delays. As an alternative, transferees that qualify for an EB-

1(C) might consider a non-immigrant L1-A, which has essentially the same requirements as the EB-1(C). An L1-A can be approved through the USCIS Premium Processing Service in just 15 days. An L1-A allows multinational managers and executives to work in the U.S. for up to seven years. An EB-1(C) can then be filed at a later time.

Conclusion

Choosing the "right" type of visa is clearly a highly personal choice. One must make an informed decision and conduct a thorough examination of one's unique circumstances and goals. Anyone interested in the EB-1(C) should work with experienced counsel in order to avoid making mistakes that can lead to delays or an outright denial. Qualified immigration and corporate attorneys can guide petitioners through the EB-1(C) process and help them avoid common pitfalls

About the Authors

Jeffrey Wang
Jeffrey Wang

Jeffrey C.P. Wang is the managing partner and founder of WHGC, P.L.C.in 1994. Mr. Wang's practice focuses on handling the legal concerns of international and domestic corporations. In addition to his J.D., Mr. Wang has two advanced Mastersof LawDegrees fromthe University of Washington and the Southern

Rita Eng Bates

Rita Eng Bates has been a senior supervising business immigration paralegal for 17 years.