How to Transfer an Alien Employee Working Abroad to Your U.S. Company

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In today’s interconnected and global landscape, it is not uncommon for many firms — including small businesses — to have operations established in other countries. This is especially the case with B2B firms, which often have R&D, sourcing, distribution or sales centers located in South America, Europe, Asia, Africa and so on.

If your business has a multinational footprint and you are considering transferring an alien employee working abroad to your U.S. operations, there here is some fundamental information that you need to know:

EB-1 Visa Categories

Through Congress, USCIS has established three EB-1 visa categories that allow aliens working abroad to obtain lawful permanent resident status (note: this is not the same as U.S. Citizenship!), and work in the U.S. These include:

  • EB-1A: Alien of Extraordinary Ability
  • EB-1B: Outstanding Researcher or Outstanding Professor
  • EB-1C: Multinational Executive or Manager

The petition that you file on behalf of your colleague in another country will typically be in the EB-1C category (Multinational Executive or Manager).

Qualifying Relationship

As part of your petition, you will need to demonstrate to USCIS that a “qualifying relationship” exists between your company, and the entity in the foreign country. A qualifying relationship is one where:

  • The U.S. employer is a parent, affiliate or subsidiary of the foreign firm where the alien employee works.
  • The U.S. employer and foreign firm are both actively engaged in doing business (i.e. the foreign firm cannot be a “paper company”).
  • The U.S. employer must have been doing business for at least one year.

In addition, the alien worker must have verifiable experience in their home country. In other words, they cannot have learned their skills or honed their craft while in the U.S., such as part of USCIC’s Optional Practical Training program.

No Labor Certification

One of the major benefits of petitioning for an EB-1C category visa, is that you will not require certification from the Department of Labor — which is a complex and time consuming process. However, you must furnish USCIS with a complete job description, and the alien worker in question must (if approved to work in the U.S.) function in a managerial or executive capacity. For example, executives must direct management of the organization, and managers must have the authority to hire and fire employees.

Presentation is Everything

Competition for EB-1C category visa is intense, and successfully obtaining one largely depends on how your case is presented to USCIS. All documentation must be complete and accurate, all timelines must be met, and a persuasive argument must be made. For all of these reasons, working with an experienced EB1 lawyer is an absolute must to ensure that your time and money is wisely invested.

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