ARE YOU A BUSINESS OWNER, EXECUTIVE OR MANAGER INTERESTED IN IMMIGRATING TO THE UNITED STATES?

Introduction

There is no question that it is difficult to immigrate to the United States. However, the U.S. government has facilitated the immigration of some executives and managers of multinational corporations, giving them what is called priority worker status. If you meet the exacting legal requirements, it may be quicker and easier than you think to immigrate. In addition, some smaller business owners may be able to structure their companies in such a way as to take advantage of this procedure. If after reading this article, you feel you are qualified to make use of the method described, you should contact an attorney who specializes in Immigration Law, or the closest Immigration Service office, U.S. Embassy, or U.S. Consulate.

Who Qualifies

Many of the requirements for this priority worker classification closely track the requirements for L-1A (Intracompany Transferee) status. (Please see Would You Like to Work in the United States? by Edward R. Litwin.) Therefore, a person coming to the U.S. or already in the U.S. as an L-1A may meet the necessary requirements.

All of the following requirements must be met to qualify:

1. Executive or Manager Experience

You must have held an executive or managerial position prior to coming to the United States. An executive is defined as a person who:

a. Directs the management of the company or a major component or function of the company;

b. Establishes goals and policies of the company;

c. Exercises wide latitude in discretionary decision-making; and

d. Receives only general supervision or direction from high-level executives, the board of directors, or shareholders of the company.

A Manager is described as one who:

• Manages a company or a department, subdivision, function, or component of a company;
• Supervises and controls the work of other supervisory, professional, or managerial employees or manages an essential function within the company;
• If other employees are directly supervised, has the authority to hire and fire or recommend those and other personnel actions; or, if no other employee is directly supervised, functions at a senior level within the organization; and
• Exercises discretion over the day-to-day operations of the company, activity, or function for which he has authority.

2. Employment Outside the United States

Employment must have been outside the United States for at least one year out of the last three years, or if in the United States, one out of the last three years preceding entry into the United States as a nonimmigrant.

3. Related Companies

Employment outside the United States must have been with the same employer, or a subsidiary, or affiliate of the U.S. company. If the employment was with the same employer, that company must be incorporated or registered to do business in the United States.

A subsidiary is a company owned at least 51% by a foreign parent company (or a foreign company owned at least 51% by a U.S. parent company). Affiliates are two companies owned by the same company, investor, or group of investors. If owned by a group of investors, each individual must own and control approximately the same share or percentage of each company.

4. Executive or Manager in the United States

You must be coming to work in the United States in an executive or managerial position with the company. If already in the United States, you must be presently working in an executive or managerial position.

5. Operation in the United States

The U.S. company must have been operating for at least one year in order to be able to petition for an employee's permanent residence. An inactive corporation does not qualify.

Procedure

If all of the above requirements are met, the probability of permanent residence is greatly enhanced. Proof that U.S. workers are not available is not required. Therefore, the difficult labor certification process can be avoided. This means that there is no risk that qualified U.S. workers may be found. Instead, a visa petition signed by the employer, is filed directly with the U.S. Immigration Service, documenting the requirements listed above, including the relationship between the companies, the position and duties of the employment, etc. Such documentation normally includes:

1. Letters from both the overseas and U.S. employing companies
2. Proof of each company's operations
3. Stock certificates and other evidence showing the relationship between the two companies
4. Documentation regarding your qualifications

Other documentation will need to be submitted, depending on the particular circumstances.

Once the visa petition is approved, the next step is to file for permanent residence (also known as the "green card"). This may be done in the U.S. or at an American Consulate in your home country. The current processing time for the visa petition is six to ten months. In addition, and assuming there are no priority date issues, adjustment of status in the U.S. is approximately 18-24 months versus 6-8 months through consular processing.

How This Process Can Be Used By Investors and Persons in Business

Even if you are not presently employed by a multinational company, it may be possible to develop facts which will qualify you for priority worker classification. For example, if you own your own company, you may have that company purchase or start a U.S. company. Your present company may then transfer you to the United States to manage the company here.

Suppose a person has owned and operated a chain of restaurants in their home country for a number of years. That person could come to the U.S., establish a subsidiary which purchases a restaurant or two, and then be transferred to the U.S. to develop and operate the restaurants in the U.S. As long as the home country business continues to operate and assuming that the U.S. company is large enough to hire employees and show a profit, such a person may be well on their way to U.S. permanent residence.

Even if you currently have no business, but have substantial funds, you can start a business overseas, as well as one in the United States, operate the overseas company for one year, and then have it transfer you to the United States. After you have been transferred, you may then go through the process of permanent residence. In one to two years, you may qualify for permanent residence. It is important to note that all of the companies must be operating businesses. Shell or "paper" businesses will not qualify.

The question is often asked "How much must I invest to start a subsidiary company in the United States?"

There is no simple answer to this question. A good answer, however, is that enough must be invested to establish a viable company. Normally this requires a large enough investment to create a business which will employ others.

Of course, there may be other factors involved since each business situation is different. But many people who cannot otherwise immigrate to the United States based on relatives or employable skills, or investors and businessmen who do not have enough to qualify for the one million dollar investment category, may be able to qualify as priority workers.

Disclaimer: Nothing on this or associated pages should be taken as legal advice for any individual case or situation. the information is intended to be general and should not be relied upon for any specific situation.

© 2001 All Rights Reserved

Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. He and his firm have helped thousands of people immigrate to the United States. He is available for consultation by appointment.