For multinational organizations, the L-1A visa is a useful tool to transfer managerial and executive employees from foreign affiliates to their U.S. office. For employers of L-1A multinational managers, the EB-1C category is often the path used to sponsor the employee for permanent residence in the U.S., due to the similarity of criteria between L-1A and EB-1C classification. While the EB-1C category is in many ways the immigrant visa counterpart of the L-1A nonimmigrant petition, there are important differences between the requirements for these two categories which multinational managers and their employers should be aware of.

Effect of foreign office closure

The closure of the foreign office where the beneficiary was employed can have very different impacts on a beneficiary’s L-1A status and their EB-1C eligibility. If their foreign employer ceases operations, L-1A employees can still maintain their status if the U.S. petitioner continues to qualify as part of a multinational organization, i.e., if it continuously maintains a qualifying relationship with another foreign company. The L-1A employee may therefore be able to continue their U.S. employment after the closure of their foreign employer, if at least one foreign affiliate, branch, parent, or subsidiary of the U.S. employer continues to exist, and as long as they continue to work in the managerial or executive capacity described in the approved I-129 petition. This is the case even if that existing foreign company never employed the L-1 beneficiary, and is not located in the country where the L-1 beneficiary was previously based. Upon filing the I-129 petition to extend the L-1 employee’s status, the U.S. petitioner would explain the closure of the foreign employer and provide documentation of the company’s continued qualifying relationship with other foreign entities.

The same is not true for immigrant petitions filed in the EB-1C category. In order to qualify for EB-1C classification, the foreign employer of the beneficiary must be in existence and actively operating from the time the I-140 immigrant petition is filed, until it is adjudicated. If the foreign employer has closed down or ceased operations, the only way an EB-1C petition can still be filed and approved is if another foreign entity qualifies as the “successor-in-interest” to the former foreign employer, and continues to operate from the petition’s filing through adjudication. Therefore, if the original employer has been merged into or acquired by another foreign entity that qualifies as a successor (defined as a corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation), the qualifying relationship for EB-1C purposes may be established and the I-140 petition could be processed.

U.S. petitioner doing business for 1 year or longer

Another point where L-1A and EB-1C requirements differ is the duration of the U.S. company’s operations at the time the petition is filed. For L-1A petitions, the U.S. office can be a new or recently established business, which the beneficiary will be transferring to the U.S. to manage. The L-1A regulations specifically allow for “new office” L-1 petitions to be filed, and the supporting documents for these petitions are typically more minimal (business plan and other evidence of the startup). The validity period for new office L-1A approvals are restricted to 1 year, after which the U.S. petitioner must file to extend the L-1A status and provide evidence of the company’s business operations at that point.

In order to file an EB-1C petition however, the U.S. petitioner must demonstrate it has been doing business in the United States for at least 1 year at the time the I-140 petition is filed; there is no provision for a “new office” EB-1C filing.

Continuous foreign employment

The L-1A classification requires that the beneficiary have worked at least 1 year continuously abroad for an employer with a qualifying corporate relationship to the U.S. petitioner, within the past 3 years of the I-129 petition being filed. Time spent physically in the U.S. during this employment is also deducted against the foreign employment duration, potentially postponing the date on which the L-1A petition may be filed, depending on how much time the beneficiary may have spent in the U.S. since joining the foreign employer.

While the EB-1C classification also requires 1 year of qualifying foreign employment within 3 years of filing the I-140 petition, it does not require that the foreign employment be continuous. Interruptions in the foreign employment therefore do not necessarily disqualify a potential EB-1C beneficiary, as long as a total of 1 year of foreign employment within the multinational organization can be demonstrated during the statutory 3-year period. This also enables a beneficiary to potentially qualify for EB-1C classification by combining periods of employment at more than one foreign qualifying entity to reach the 1-year minimum requirement. This particular difference in criteria could enable current or potential managerial employees of the U.S. company to pursue EB-1C classification, even if they were not eligible for L-1A status due to the non-continuous nature of their employment with the foreign employer(s).

Specialized knowledge position abroad

Finally, another important difference is the nature of the beneficiary’s foreign qualifying employment. For L-1A purposes, the beneficiary’s employment abroad could have been managerial/executive or specialized knowledge; they are classified as L-1A employees on the basis of the U.S. position being managerial or executive in nature. This may be the case for the beneficiary’s initial L-1A petition if they are transferred directly into a managerial role in the U.S., or in the case of an employee who is initially transferred to the U.S. as an L-1B specialized knowledge employee, and is later promoted to a managerial role and has their status changed to L-1A.

For EB-1C classification however, the foreign employment must have been managerial in nature; employment abroad that is only specialized knowledge in nature would not qualify an L-1A employee for EB-1C classification. An employee in this situation may still qualify for EB-1C classification, if it can be demonstrated that in addition to being a specialized knowledge role, the foreign employment was also managerial in nature. While this argument is possible, it can be challenging – typically, if the foreign employment was clearly managerial in nature, the L-1A petition would have classified it as such in the initial filing, and describing it now as managerial in the I-140 petition requires ensuring there are no contradictions with the previous I-129 petition’s statements. Casting the foreign employment as a functional manager role may be the best option, if the beneficiary did not directly manage personnel during their employment abroad.

While the criteria for the L-1A and EB-1C classifications are very similar, multinational managers and their employers should keep the differences discussed above in consideration to ensure that existing L-1A employees qualify for the EB-1C category, and that the EB-1C category not be discounted for employees who do not qualify for L-1A status.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.