EB-1 for managers on H-1B

Getting an EB-1 for managers on H-1B status may seem simple, but it requires quite a bit of work on your part and the part of your employer. This guide will help you avoid common pitfalls and obstacles to make sure you have EB-1 eligibility and get you from H-1B to Eb-1C.

EB-1 Background

The EB-1 visa is the most distinguished and highly sought-after green cards in the employment-based category. It offers benefits that some of the other preference levels do not. However, to obtain this prestigious immigrant visa, you must fall into one of the following categories:

  • EB-1A for individuals with extraordinary achievement
  • EB-1B for outstanding researchers and professors
  • EB-1C for multinational managers and executives

Because this article is for the EB-1 for managers on H-1B visa status, we’ll focus on the third category: the EB-1C.

EB-1 Eligibility for H-1B

According to USCIS, the EB-1C is a green card with specific requirements.

  • The petitioner must be a U.S. employer who has been conducting business at a foreign entity in a foreign country for at least one consecutive year.
  • You must have worked for this employer abroad for at least one consecutive year in the three years before filing your petition.
  • You must be coming to the U.S. to work as a manager or executive for that employer.

Here are the requirements to demonstrate that you are a manager or executive:

  • As an EB-1 functional manager, you must be responsible for a department or function of the company and have the ability to hire, fire, and control the wages and activities of your employees.
  • As an executive, you need to have the power to make far-reaching decisions on behalf of the company without substantial supervision. You must also be responsible for a team of managers.

Some positions carry the title of manager or executive without fulfilling the above requirements. Be sure to double-check with your attorney to ensure that your job qualifies.

So as you can see, to meet the multinational manager job description, you will need to jump through a few hoops. Have additional questions regarding EB-1 eligibility for H-1B workers? It’s best to contact our office and schedule a consultation.

How to Go from H-1B to EB-1C Green Card

So you’ve been on H-1B status for a few years, and you get that promotion you’ve been waiting for. Should you immediately try to go from H-1B to EB-1C green card?

No. Here’s why.

Unfortunately, there is no direct path from an H-1B to EB-1C. This process may be more difficult for you than other immigration processes.

If you are a manager on H-1B status, you would need first to determine if your U.S. employer is multinational, meaning that they have a branch, office, affiliate, or subsidiary in a foreign country.

If that is the case, you must have worked for at least one year in a foreign entity. That’s right. You cannot simply adjust your status to EB-1C if you work exclusively in the U.S. The EB-1C requirements state that you must have worked for one full continuous year in the foreign entity during the three years leading up to your petition.

This requirement usually impedes managers on H-1B from getting an EB-1C. This is because, under the H-1B, you likely have spent the last several years working in the U.S. for your employer.

If this is the case, you will need to travel to the employer’s foreign entity to work for at least one year in a managerial or executive capacity. L-1A holders much more easily meet this requirement because of similar conditions.

On the other hand, if you fulfill this requirement, you will need to start the green card process from the beginning.

What is the Process?

You first need to have your employer file an I-140 petition on your behalf with the USCIS. Even though you are applying for an EB-1, you still need a valid job offer from a U.S. employer. The only green cards that do not require a sponsor are the EB-1A, the EB-5, and the EB-2 with a National Interest Waiver.

The next step will be to wait until your priority date is current. Fortunately, the dates for the EB-1 are usually automatically current. However, this is not always the case. Check the latest Visa Bulletin here to see where you stand. In our monthly Visa Bulletin post, we provide updates on the most recent visa bulletin released by the Department of State, analyze the date movements, and predict upcoming months to help intending immigrants. So what is the Visa Bulletin? The bulletin summarizes the availability of immigrant numbers for “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Keep reading to learn how priority dates work.

Once your priority date is current, a visa number will become available, and you will be able to do one of two things:

  • File an I-485 for an adjustment of status to switch from H-1B status for managers to EB-1C, or;
  • Go through consular processing to obtain your EB-1 green card.

How Do Priority Dates Work?

Your priority date is the day that the USCIS receives your I-140 petition. With that in mind, you will need to keep a close eye on the “final action dates” provided by the Department of State in their monthly visa bulletin.

The final action dates are divided according to the green card preference level and the applicant’s country of origin. When more nationals of a particular country apply than visas available, a backlog will develop.

This backlog could mean years of waiting for some countries and preference levels. For others, like the EB-1C for managers and executives, most of their priority dates do not have a backlog at all, meaning that you can adjust your status or go through consular processing as soon as your I-140 is approved.

How Long Will It Take to Get an EB-1 for Managers on H-1B?

The processing time varies based on several factors. Firstly, it depends on your country of origin. If you are from any country other than China or India, your priority date will be current as soon as your I-140 is approved.

The I-140, on the other hand, takes an average of about six months to be processed, though this depends on the caseload of the service center that is processing your petition. You can check up-to-date service center processing times here.

Another factor determining your processing time is whether you choose to adjust your status or go through consular processing. Adjusting your status requires you to file an I-485 and wait approximately six months for it to be processed, though this also depends on the service center.

However, keep in mind that adjustment of status is only available to applicants who are already in the U.S. under a nonimmigrant status. If you return to the U.S. after your year working as an H-1B manager abroad and your H-1B status is still valid, you are eligible to adjust your status.

If you are still outside the U.S. when your priority date is current, you will need to use consular processing. This means that you will need to make an appointment with and travel to a designated U.S. consulate or embassy. There, you will be interviewed by a consular officer to determine whether or not your situation is legitimate and if you qualify for the EB-1 for managers on H-1B.

While it seems as though adjustment of status is the better option, consular processing may be the faster path depending on your circumstances. Speak with your immigration attorney to learn which way is best for your immigration situation.

Can I Use Premium Processing?

Unfortunately, the EB-1C is one of the few green cards that does not allow petitioners to use premium processing, a service offered by the USCIS that shortens the I-140 processing time to 15 calendar days.

How Much Would It Cost?

To give you a general idea of what the overall cost would be for an EB-1 for managers on H-1B, here is a quick breakdown of the fees based on which immigration path you choose:

Adjustment of Status

  • I-140 basic filing fee: $700
  • I-485 filing fee: $750-$1,140. This fee changes based on your age. You can see the full chart in the “special instructions” section on the form page.
  • Biometrics fee (if applicable): $85

Consular Processing

  • I-140 basic filing fee: $700
  • DS-260 Online Immigrant Visa Application fee: $230
  • Biometrics fee (if applicable): $85
  • Affidavit of Support fee (if applicable): $88

Other costs that you may need to consider include travel costs and attorney fees.

What Are Some Alternatives?

If getting an EB-1 for managers on H-1B is too difficult, you may want to consider some other options for obtaining a green card.

The EB-2 could be an option for you if you either have an advanced degree or could be considered exceptional in your abilities within your field.

Instead of that, you can always apply for the EB-3. This category is available to anyone with a full-time job in the U.S. However, keep in mind that the wait time for the priority dates in this category is very long. Speak with your immigration attorney to learn which option best suits your case.

H-1B to EB-1C Frequently Asked Questions

Who qualifies for EB-1A?

To qualify for EB-1A, you must demonstrate the following:

  • Sustained national or international acclaim for your achievements
  • Prove that you are coming to the U.S. to further work in this area of achievement
  • Show how being in the U.S. is in the interest of the country with your contributions

Click here to learn about how USCIS defined “extraordinary ability.”

Is a labor certification required for the I-140?

No, a labor certification is not required for I-140 in the EB-1 category. This is one of the advantages of an EB1C. However, you do need a job offer for an EB-1C petition. The job offer statement must indicate that you will be working in the U.S. in an executive or managerial capacity. Be sure the responsibilities are laid out in the letter.

What requirements does the petitioning company need to fulfill?

To qualify, the petitioning employer in the U.S. must be the same or a subsidiary of the company employing you (foreign worker) overseas. USCIS requires the company (directly or via a subsidiary) to conduct business in two or more countries, one of them being the U.S.

How does USCIS define “subsidiary” for EB-1C?

Based on USCIS definitions, “affiliate” means that the parent company does one of the following. It owns and controls (directly or indirectly) either:

  • More than fifty percent of the entity (subsidiary)
  • Fifty percent of the entity in a joint venture (has veto power and equal control)
  • Less than fifty percent but still retains control

How does USCIS define “affiliate” for EB-1C?

USCIS defines an affiliate company as “one or two subsidiaries that are both owned and controlled by the same parent/individual, or one of two legal entities owned and controlled by the same group of individual(s) with equal shares of each entity or international accounting firms.”

Is I-140 required for EB-1?

Yes, you need to have your employer file an I-140 petition on your behalf with the USCIS.

Can you apply for H-1B and a green card?

Your employer can petition for our H-1B petition and green card process at the same time if they are willing. Alternatively, if you get a green card on your own (not employment-based), then you can see which one gets approved first (a green card is preferable). Say, for example, your employer petitions for an H-1B, and around the same time, you get a marriage-based green card and end up becoming a green card holder. If this is the case, you do not need the H-1B status anymore to work or live in the United States. However, be aware that if your green card is approved, you shouldn’t use the H-1B visa to enter the U.S. because it can be considered abandoning your permanent residency. You can also inform your employer to withdraw the H-1B petitions so they can be available for someone else.

What is the EB-1 salary requirement?

There is no technical minimum EB-1 salary requirement. Still, you will need to demonstrate to USCIS evidence that you have commanded a “high salary or other significantly high remuneration for services, in relation to others in the field.” An EB-1 adjudicator will analyze your annual income statements (pay stubs, tax return, accountant letter, etc.) concerning others in your field to make this determination.

Article Sources

  1. Travel.State.gov. “Visa Bulletin
  2. USCIS.gov. “I-485, Application to Register Permanent Residence or Adjust Status
  3. Travel.State.gov. “DS-260 Immigrant Visa Electronic Application – Frequently Asked Questions (FAQs)
  4. USCIS.gov. “Consular Processing
  5. USCIS.gov. “Visa Availability and Priority Dates

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The process of switching to an EB-1 for managers on H-1B is not an easy one. To ensure that you are on the best path and avoiding these errors, consider retaining an experienced immigration attorney. VisaNation Law Group's EB-1 lawyers have a long track record of successfully helping managers on H-1B status attain their green cards.