PERMANENT RESIDENCE SPONSORSHIP FOR MULTINATIONAL MANAGERS/EXECUTIVES
This is to outline the process of obtaining permanent residence in the United States based upon an offer of employment for a MULTINATIONAL MANAGER/EXECUTIVE.
This kind of sponsorship is one designed to facilitate the transfer to the USA certain key employees of multinational organizations. At a minimum, there must be a “foreign company” (a company whose physical location is outside the USA) and there must also be a “subsidiary” or “affiliate” or a “parent company” of that “foreign company” in the USA. (Please note that the “foreign company” may be the parent of the American company or the American company may be the parent of the “foreign company”).
A company is and “affiliate” of another company when they are both commonly owned by ALL the same persons or if they are majority-owned (50.1%) by the same corporation. A company is the “subsidiary” of another company when it is majority-owned by that company. A company is the “parent” of another company when it owns the majority of the shares of the subsidiary. There are cases when even a joint venture between companies may qualify as well.
The employee being sponsored must be one that has been employed in a MANAGERIAL or EXECUTIVE position abroad (outside the USA in the “foreign company) for one year or more during the LAST THREE YEARS and is coming to the USA to be likewise employed by the American company in a MANAGERIAL or EXECUTIVE capacity.
The sponsorship is PROSPECTIVE IN NATURE. THIS MEANS THAT THE SPONSORED ALIEN NEED NOT CURRENTLY BE EMPLOYED BY THE SPONSORING ORGANIZATION. The application assumes that the sponsored alien will commence employment if and when he/she is accorded lawful permanent residence in the FUTURE (that is, after securing permanent residence status). Permanent residence status is often referred to as securing a “green card”.
Of course, this kind of immigrant visa petition is almost always filed by an employer for an individual who is currently in the United States working for the U.S. Corporation, generally in L-1A status (intracompany transferee manager/executive) and that person may already be employed by the American company.
SPONSOR/EMPLOYER
For the sake of brevity and clarity, when we refer to the “sponsor” we mean to say, the employer, the U.S. company or legal entity that will make a job offer to the alien and file an application with the U.S. government and as “alien” or “alien beneficiary” when we refer to the individual to whom a job offer is being made and who will eventually obtain permanent residence based on this job offer.
STEPS TO BE TAKEN
The process involves TWO steps. Those steps are:
1. The employer must file an I-140 immigrant visa petition with and receive an approval from the Bureau of Citizenship and Immigration Services (BCIS); and
2. The U.S. consul or BCIS must issue the alien being sponsored an immigrant visa or accord him/her permanent resident status.
STEP 1. IMMIGRATION SERVICE APPROVAL (immigrant visa petition)
STEP 2. U.S. CONSUL OR BCIS APPROVAL (immigrant visa issuance OR adjustment of status)
STEP ONE
Immigrant Visa Petition with BCIS.
The FIRST step is the filing of an I-140 immigrant visa petition with BCIS by the employer on behalf of the alien beneficiary. The purpose of the immigrant visa petition is for BCIS to ascertain: that the company abroad and the company in the USA are “qualifying organizations” for purposes of multinational manager/executive transfers (this means, that they are related in the manner above described), its size and its financial ability to sponsor aliens for permanent residence as well as to ascertain that the sponsored alien was or has been employed abroad in a managerial or executive capacity and will likewise be employed in the American company.
PLEASE NOTE THAT UNDER RECENT REGULATIONS STEP ONE AND TWO CAN BE DONE SIMULTANEOUSLY UNDER SOME CIRCUMSTANCES. IN OTHER WORDS, THE I-140 IMMIGRANT VISA PETITION DESCRIBED IN STEP ONE CAN BE FILED TOGETHER WITH THE I-485 ADJUSTMENT OF STATUS APPLICATION DESCRIBED IN STEP TWO (not everyone is eligible to file the I-485 adjustment of status application in the USA and, therefore, step one and two may not be taken simultaneously).
FINANCIAL ABILITY TO PAY THE OFFERED WAGE
Large publicly traded companies will generally submit the ANNUAL REPORT detailing the operational and income for the company as required by Federal law.
Smaller companies or companies that are privately owned may have to submit the actual corporate tax return or audited financial statements.
The financial ability of the sponsor is principally to determine that small companies have sufficient financial resources to follow through with the job offer and it is proved through the company’s production of the corporate income tax return or other competent financial evidence (which may be audited financial statements or annual reports for publicly traded companies.
Please note that if the alien is not on the payroll of the sponsor, the rule of thumb to follow is that the sponsor’s corporate income tax return should show a profit which is equivalent to at least the salary being offered to the alien beneficiary.
The financial evidence that will be submitted to the BCIS will be for the year in which the I-140 is filed (which means that the I-140 must be accompanied by the last available tax return as the one for the year in which the I-140 is filed would not be ready until the year has come to an end). While the I-140 immigrant visa petition may be filed with the tax return for an earlier year, BCIS may still request the tax return for the appropriate year sometime later.
STEP TWO
Interview at the U.S. Consulate outside the U.S.
or Adjustment of Status interview in the U.S.
The purpose of the interview is to determine that the alien beneficiary has the proper intent to work for the sponsor in the position offered and that he/she is not excludable from the United States. The grounds for exclusion include things such as having a dangerous contagious disease, being a criminal, being a drug addict or drug trafficker, being an immoral person, having persecuted people based on race, religion or national origin such as a member of the Nazi government, or any one of a number of other grounds which relate to particular classes of “undesirable” individuals.
The interview is generally held by a Consular Officer except that certain individuals (those who have never violated their status in the United States, have never overstayed, and never worked without permission) are qualified to appear within the United States before a BCIS Examiner in the United States for the interview. The latter is accomplished by filing what is known as I-485 adjustment of status application and it will avoid having the alien travel to his/her home country to be interviewed by the U.S. Consul – the alien will be interviewed by a BCIS officer in the USA.
The interviewer has access to matters involving criminal background checks, may do investigations, will have information generated by the BCIS and will conduct an interview at which it is incumbent upon the alien to demonstrate entitlement to immigrate. The Consul proceeds with the assumption that it is the alien’s responsibility to demonstrate entitlement and all doubts are resolved against you.
PLEASE NOTE THAT UNDER RECENT REGULATIONS STEP ONE AND TWO CAN BE DONE SIMULTANEOUSLY UNDER SOME CIRCUMSTANCES. IN OTHER WORDS, THE I-140 IMMIGRANT VISA PETITION DESCRIBED IN STEP ONE CAN BE FILED TOGETHER WITH THE I-485 ADJUSTMENT OF STATUS APPLICATION DESCRIBED IN STEP TWO (not everyone is eligible to file the I-485 adjustment of status application in the USA and, therefore, step one and two may not be taken simultaneously).
Other Considerations
Following the issuance of an immigrant visa to the alien beneficiary, both the sponsoring organization and the alien have some obligations toward each other. The sponsor is expected to have the position available for the alien and the alien is expected to actually report for work. The employment involved is an employment at will and may be terminated by either party as in any other employment at will situation. The fact that there was a written offer of employment utilized within the labor certification process does not create a contract of employment for any particular length of time. If the employment does not work out, the sponsor is free to terminate the employment relationship and the alien beneficiary is, similarly, free to terminate employment as well. The key is to remove any fraudulent appearance on behalf of the employer and the applicant.