Some business owners or executives, after residing in the U.S. for some time in L-1a status, decide they wish to pursue permanent resident status in the United States. That is a future decision for clients to make based upon their circumstances after arriving to the U.S. and working in L-1a status for some time. Nonetheless, at the start of this process, we find it useful to educate clients as to this option that may be available to them in the future to ensure our initial actions and timelines do nothing that could rule out this possibility. But, again, the decision on whether to proceed with this is one that can only be made in the future, after first obtaining and working in L-1a status, based upon the circumstances that exist at that time.

EB-1C stands for the employment-based, first preference immigrant classification for multinational executives or managers. This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity or to allow such an employee (in this case, the client) to adjust status from L-1a to that of permanent resident (ie. a green card holder). In this case, if the client chooses to proceed to EB-1C, we must file that petition in a limited window: between one and two years after the client arrives to U.S. for the first time in L-1a status.

The EB-1C requirements are essentially identical to the L-1a requirements. There are about 40,000 EB-1C visa slots available and there currently only a minor backlog that involves the imposition of a cut-off date (as of October 2019, the cut-off date was in mid-2018, however while awaiting the cut-off date, the client may file and gain I-140 approval and remain inside the U.S. in valid status while awaiting green card availability via filing for the adjustment of status).

The process for EB-1C is that we first file Form I-140, Immigrant Petition for Alien Worker, to USCIS. At this stage, we must prove that the employer (the U.S. business) is conducting business in the United and has been in existence at least one year. We also must show that the client has been employed for one year within the past three years preceding the petition by the parent company, overseas affiliate, branch, or subsidiary of the U.S. employer and will work in the U.S. in an executive (or managerial) capacity with the same employer or an affiliate or subsidiary of the employer. To do this, we will reuse many of the business’ formation documents from earlier in the process. In addition, we will need to show the business is engaged in regular and customary business operations in the U.S. This will be done through tax returns, employment and payroll records, banking and financial information, and various other documents created in the normal course of business.

The timeline we must meet here is noteworthy. Specifically, we must file the I-140 at least one year, but no more than two years, after the client arrives to the United States in L-1a status for the first time. This is because the U.S. business must have been open at least one year at the time we file in order to be eligible AND the client must have worked at the foreign office as an executive for at least one year in the past three years. Thus, we need one year of work abroad in the past three years leading up to the day of I-140 filing. During that time, the U.S. business must have been open at least one year. Consequently, we have a limited window of about one year in which we can file a successful I-140. This is not a particularly complex filing, but it does require considerable planning and forethought. Thus, we should all be aware of the timeline we must follow so that we tailor our activities properly to meet it. We will help clients manage these timelines because the decision to pursue the EB-1C petition is one that can only be made once they have arrived and begun working in L-1a status. After several months in that status, we can work together to understand the circumstances of the L-1a business, assess the client’s overall needs and goals, and collectively establish a plan that might (or might not) involve pursuing green cards via the EB-1C category.

 If there is a cut-off date when we file for the EB-1C, we must file Form I-140 alone. Once the cut-off date of the client’s particular case is met, we file Form I-485 to adjust to permanent resident status for the client and all family members. In addition, in most cases, we file Form I-131 and I-765 for all family members as well, which will give them permission to travel abroad while awaiting I-485 approval. Please note that, in most cases, this requires all people filing I-131 to remain inside the U.S. for approximately 3-4 months from the time of filing; if they leave during this period, they will not be able to renew the L-1a visa and return to the U.S. in that status.

 As part of the I-485 process, the client is likely to be called to an interview at the local USCIS office. We will prepare the client for this beforehand and, if requested, we can attend the interview with them or find local counsel to do so from RLG’s network (though, of course, this would be an added cost).

 There are many benefits or advantages to the EB-1C classification. First, it yields green cards for the business owner and all family members,. Secondarily, the requirements are not terribly onerous or burdensome compared to most other employment-based permanent residency categories – we do not need to prove exceptional ability, make a very large investment, or obtain a PERM labor certification. Overall, this category represents a straightforward continuation of the L-1a process and one that brings permanent U.S. residency to all family members, if they ultimately decide that is something they wish to pursue after spending some time in L-1a status and assessing their needs and objectives at that juncture.