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EB-1 for Managers on H-1B

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. Keep reading to find out what goes into an EB-1C and how to get there from H-1B status.

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-1C Eligibility for H-1B

According the the USCIS, the EB-1C is a green card with very 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 3 years prior to 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 the need for substantial supervision. You must also be responsible for a team of managers.

There are some positions that carry the title of manager or executive without fulfilling the above requirements. Be sure to double check with your attorney to be sure that your position qualifies.

So as you can see, to meet the multinational manager job description, you will need to jump through a few hoops.

How to Get from an H-1B to a 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 apply for an EB-1 green card?

No. Here’s why.

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

If you are a manager on H-1B status, you would need to first 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 the foreign entity. That’s right. You cannot simply adjust your status to EB-1C if you have been working 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 3 years leading up to your petition.

This is the requirement that 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, then you will need to travel to the employer’s foreign entity to work for at least one year in a managerial or executive capacity. This requirement is much more easily met by L-1A holders on account of the similar requirements.

On the other hand, if you do fulfill this requirement, then 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 to have 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. For example, as of June 2017, residents of China and India must wait several years before they can move on with the next step. 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 certain country apply than there are visas available, a backlog will develop.

For some countries and preference levels, this backlog could mean years of waiting. 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 6 months to be processed, though this depends on the caseload of the service center that is processing your petition.

Another factor that determines your processing time is whether you choose to adjust your status or go through consular processing. Adjusting your status simply requires you to file an I-485 and wait approximately 6 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 with the purpose of determining whether or not your situation is legitimate and if your fully 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 of 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 take into account include travel costs and attorney fees. To see our flat EB-1 fees, you can visit our fees page.

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.

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

How Our Immigration Attorneys Can Help

The process of switching to an EB-1 for managers on H-1B is not an easy one. Because there are so many steps, it may be easy to make a simple mistake on your petition that could cost you a significant amount of both time and money. To ensure that you are on the best path and avoiding these errors, consider retaining an experienced immigration attorney.

Here at SGM Law Group, our EB-1 lawyers have a long track record of successfully helping managers on H-1B status attain their green cards. If you would like to work with one of our attorneys, you can fill out this contact form and schedule a consultation with our office.