Intra-Company Transferees Exempt From Labor Certification

Generally, an employment based worker applying for a green card needs a labor certification which is an onerous process that requires testing the job market.

One category that does not need a labor certification refers to the multinational executive or manager. These are employees that are transferred from a foreign organization to a U.S. entity.

An executive is an individual that directs the management of a company or a major component or function. He establishes the company goals and policies and exercises broad discretionary decision-making. He is subject only to the general supervision or direction from higher level executives, board of directors or stockholders.

A manager, on the other hand, personally manages the organization or any of its departments or components and supervises and controls other supervisors, professionals or employees. He also has the authority to hire and fire and he has the discretion over day to day operations.

The executive or manager must have been employed in that capacity outside the U.S. for at least one year of the last three years. This may be proved by payroll records or tax returns of the employer.

The past employment must have been with the same employer or its affiliate or subsidiary.

An affiliate is an entity owned and controlled by the same group in approximately the same proportion as in the other company. Examples of an affiliate relationship can be found in accounting firms or management consulting organizations.

A subsidiary implies that one entity owns at least 50% of the other entity. It can be a joint venture with a 50/50 ownership.

Ownership and control may be proven by corporate papers, annual reports, stock ownership records, accounting reports and tax returns.

The USCIS has been strict in adjudicating petitions filed on behalf of a multinational executive or manager. The petitioning U.S. company must have been doing business for one year. It is also required to show that it is not just a shell corporation and that it needs the services of the executive or manager.

The foreign company must be in operation at the time of the visa interview. This can be proved by contract for services or goods, bank statements, receipts of goods sold or bought or payroll records.