EB-1 Visa Attorneys in Columbus, OH

Part Two: Final Merits

Once the USCIS has made the determination that you have established at least two of the above six criteria in part one, it will then make a part two analysis to evaluate all of the submitted evidence to make a decision whether to have shown that you are recognized internationally as outstanding in your specific academic field.

EB-1 Employment-Based: EB 1-3 Multinational Executives and Managers

A foreign national who qualifies under one of the three immigration employment-based first preference categories may file an I-140 immigrant visa petition without first needing to complete the labor certification process. Those three categories are: extraordinary ability, outstanding researchers, or multinational executives and managers.

Qualifying as an EB13 Multinational Executive or Manager

There are three prerequisites to qualify. The petitioner must establish all of the following:

1. The US company and the foreign company maintain a qualifying relationship;
2. The US company and the foreign company are both actively engaged in doing business;
3. The US company has been actively engaged in doing business for at least one year.

In addition to the above, it must be established that the US organization can pay the beneficiary's salary.

EB-1 Visa

Qualifying relationship

A foreign employee working abroad can be transferred to a US Company as an EB13 immigrant when a qualifying relationship exists between the foreign company and the US Company. This means that the US employer must be an affiliate, parent, or subsidy of the foreign company. The petitioner must establish that that the foreign company and the US Company is the same beneficiary’s employer. The US company must be owned and controlled by the foreign company.

Doing business

The US employer must have been doing business for at least one year. This means that a person would not qualify in the case of someone who is seeking to be employed in a new US office. Even if a US company has been existing in the US for more than a year, if it was not continuously engaging in the provision of goods or services for at least one year, then the company does not qualify file for the E13 immigrant petition.

Must be multinational executive or manager.

The beneficiary must have a permanent US job offer in a position that is primarily managerial or executive. The beneficiary must have been employed abroad for at least one of the previous three years.

Managerial capacity

A person is considered to have a position of managerial capacity when he or she is primarily engaged in all of the following:

1. Management of the organization, department, subdivision, function, or component of the organization;
2. Supervision and control of the work of other supervisors, professionals, or managers;
3. Has authority to hire and fire or recommend such action for directly supervised employees;
4. Has discretion over daily operation of the duties or functions for which employees have authority.

Executive capacity

A person is considered to have a position of executive capacity when he or she is primarily engaged in all of the following:

1. Direction of the management or a major component or function of the company;
2. Establishment of goals and policies of the company;
3. Has wide latitude in discretionary decision-making;
4. Gets only general supervision from upper level executives such as the board of directors or stockholders.

The person will not be deemed to be an executive or manager simply because he or she has that job title. The attention is on the person's primary duties. If you have questions about the EB1 multinational executives and managers immigrant petition category, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

EB-1 Extraordinary Ability Visa for Entrepreneurs

Immigration Attorneys in Columbus Ohio, Cleveland Ohio, Southfield Michigan and Washington, D.C.

If you are trying to start a business in the US as a foreign national entrepreneur and you have extraordinary ability in your field, you may qualify for the EB-1 extraordinary ability visa for entrepreneurs if you meet certain requirements. 

For further information, or if you would like to have a consultation with an attorney about the specific facts and circumstances of your case, contact the experienced attorneys at The Law Firm of Shihab & Associates. 

What Is the EB-1 Extraordinary Ability Visa?

The EB-1 extraordinary ability category is a visa option for foreign nationals with extraordinary ability in their field of expertise. The EB-1 is an immigrant visa meaning that it grants US lawful permanent resident status (green card).

Spouses and unmarried children under the age of 21 may also obtain permanent residence status as dependents of the EB-1 principal applicant.

EB-1 Visa

How Does the EB-1 Work for Entrepreneurs?

The EB-1 may be an alternative to the H-1B if you don't qualify. The H-1B requires that your area of expertise is in a specialty occupation. The EB-1 visa will grant you permanent residence (green card), while the H-1B is a nonimmigrant visa that does not. 

The H-1B can lead to labor certification and an immigrant visa down the road. Let us plan a business strategy that works best for you. We are an innovative firm with proven results.

What Are the EB-1 Requirements?

Requirement 1: You Must Prove that You Possess Extraordinary Ability in Your Field

The classification “extraordinary ability” is a category reserved for that small percentage of people who are considered to have reached the very top of their field of expertise and are coming to the United States in order to continue working in that field.

There are two different methods to establish that you have extraordinary ability. The first method is to prove that you have a major, internationally recognized award, like the Nobel Prize for example.

In order to show that award is of that high caliber, evidence should include some of the following: 

1. The nature of criteria used to grant the award
2. The significance of the award in your field
3. The reputation of the organization that granted the award
4. Other winners of the award who have achieved international acclaim
5. If the award encourages competition from internationally recognized individuals in the field

The second method to prove extraordinary ability is to establish at least 3 of these 8 criteria:

1. Your receipt of a prize or award for excellence in the field that is less recognized nationally or internationally;
2. Your membership in associations that require outstanding achievement as judged by recognized national or international experts;
3. Published material about you in professional or major trade publications or major media relating to your work in the field;
4. Your participation on a panel or individually judged the work of others in the same or similar field;
5. Your original contributions of major significance in your field of expertise that are scientific, scholarly, or business-related;
6. Published scholarly articles authored by you in professional journals or other major media;
7. Your work in a critical or essential capacity for organizations and establishments with a distinguished reputation;
8. Evidence that you receive or will receive a high salary or other remuneration for your work.

Requirement 2: You Must Show that You Are Coming to the United States in Order to Continue Your Work in the Area of Expertise

You must provide evidence that demonstrates you are coming to the United States to continue working in your area of extraordinary ability. 

This evidence should include:

1. Letters from current or prospective employers
2. Documentation establishing your pre-arranged commitments (such as contracts)
3. And a detailed statement of your plans regarding your intent to continue working in your field in the United States

Additional Information about the EB-1 Visa

The EB-1 visa category is similar to the O-1A extraordinary ability visa category, but there are differences. You can file the EB-1 petition on behalf of yourself, which is something you cannot do with the O-1A visa that requires that the petition be filed by an entity on your behalf. 

Another difference is that the EB-1 is an immigrant visa, meaning that once the petition is approved, the new become eligible to adjust status to permanent residence using Form I-485. Conversely, the O-1A is a non-immigrant visa, meaning that it is intended to be used to work in the United States for a temporary period of time. The EB-1 is a first preference category, meaning that your priority date is likely to be current allowing for concurrent filing of the I-140 and the I-485.

EB-1 Intracompany Transferee: AAO Case Decision re Entrepreneurs

It is invaluable to stay current with recent and relevant case law in order to have a true understanding of the way immigration law is applied in the real business world. A recent decision issued by the USCIS Administrative Appeals Office (AAO) June 13, 2013 was about a case involving an entrepreneur who applied under the First Preference Employment Based(EB-1) immigrant visa petition as a multinational executive or manager.

If you are an entrepreneur desiring to operate a business in the United States and acquire legal status or permanent residence, contact The Law Firm of Shihab & Associates for a consultation with a Columbus immigration attorney about the facts and strength of your immigration case. Our lawyers have over 50 years of combined legal experience in a wide variety of complex and immigration law matters. Attorney Gus M. Shihab has lectured investors internationally and is well versed in innovative immigration solutions to meet your objective.

You must know that recent initiatives undertaken by the US government makes it easier for foreign entrepreneurs to acquire legal status to run their investment enterprise and to apply for permanent residence.

In this recent case, the AAO Court issued a favorable decision toward the foreign national entrepreneur and established four important points. The court's decision illustrated that although it may seem upon cursory review that some entrepreneurs do not meet the black letter law qualifications, upon closer examination and application of real-world principles they do. A good attorney should be able to recognize these distinctions and use them to the entrepreneur's advantage.

The parties’ names this case were redacted, however we do know that the petitioning US company was conducting business in ground transportation in Illinois and was incorporated in 1997. The petitioning company had filed an EB-1 intracompany transferee visa petition on behalf of the beneficiary, who was the entrepreneur in this case, being the majority shareholder of the foreign company and the US company. Originally, the USCIS adjudicator (or “director”) denied the petition on four separate grounds.

The petitioner appealed to the AAO Court, which reversed the denial and explained how the entrepreneur did meet all four grounds as follows:

1. The term “employee” is defined by the person's duties and responsibilities;
2. The company’s “reasonable needs” are not defined by its size alone;
3. The foreign company is still considered to be “doing business” when the owner resides in the US;
4. The one-year timeline is not broken by a change in the company’s ownership and management.

An “Employee” Is Defined by Duties & Responsibilities

The director held that since the petitioner did not present evidence to establish that the US company had supervisory control or ability to hire and fire the entrepreneur that he did not qualify as an “employee” under the definition. The AAO did not agree and held that although the petitioner did not show there was a board or individual having supervisory authority over the entrepreneur, the focus of the criteria should be concerning the duties and responsibilities of the entrepreneur, not his/her employment status.

A Company’s “Reasonable Needs” Are Not Defined by Its Size Alone

The director concluded that the US company did not have a need for the entrepreneur to work as a manager because the director determined that the company lacked the organizational complexity required since there were only eight employees. The AAO disagreed and held that the director should have taken into account additional factors to determine the company's organizational complexity because the number of employees or size of the company alone is not enough to conclude a manager is not needed.

A Foreign Company Is Still “Doing Business” When the Owner(s) Reside(s) in the US

The director determined that the foreign company was not doing business abroad because the entrepreneur and his wife owned the foreign company and resided in the US. The AAO disagreed with the director and held that the foreign company was still doing business because the petitioner had submitted sufficient evidence showing the foreign company’s real estate, business contracts, 52 employees, and photographs of the premises.

The One-Year Timeline Is Not Broken by a Change in the Foreign Company’s Ownership & Management

The director originally determined that the foreign entity had not been doing business for the one-year required period because the entrepreneur bought the US company during that period. The AAO did not agree and said that the director's determination was wrong as a matter of law because a change in ownership and management is irrelevant as to whether the company has been doing business as defined by law, which is “the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity.”