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The L-1A Manager Visa/EB-1C Multinational Manager Green Card vs. the EB-5 Regional Center Green Card

L-1A manager transfer visa and EB-1C multinational manager green card

A company that operates actively in a foreign country may transfer an owner/manager or executive to a U.S. affiliate or subsidiary with the L-1A manager transfer visa. The transferring foreign business must be a parent, subsidiary, or affiliate of the U.S. business. This is achieved through joint-ownership: one business owns the other, the same individual has a controlling interest in both businesses, or the same individuals jointly own a controlling interest in both businesses. An L-1A visa applicant must have worked at least one complete, continuous year, on a full-time basis, during the previous three years for the foreign business that is transferring him/her to the U.S.

An L-1A Manager or Executive must be transferred to the U.S. to direct professional employees at different levels of responsibility in the U.S. parent, subsidiary, or affiliate company. The company must have a departmentalized structure with multiple lines of authority, and levels of managers, below the level of the L-1A Manager or Executive. If the U.S. business qualifies, an L-1A visa can be renewed for a total of 7 years, with a maximum of 3 years for each issuance, except for the one-year maximum for the first L-1A visa when the U.S. company is less than a year old.

An L-1A manager transfer visa holder, who is granted a visa renewal, has a chance of qualifying for the EB-1C multinational manager green card, given that the qualifying requirements for the EB-1C multinational manager green card are basically equivalent to the L-1A visa requirements. However, USCIS expects for the EB-1C multinational manager to have more employees and layers of management under him or her in the U.S. company. Both the U.S. and the foreign companies must still be actively operating and employ personnel; the manager of the U.S. facility must document his personnel management and supervision responsibilities. He/she must be at the head of one or more professional teams in the company, or manage a company division or department.

Advantages of the L-1A/EB-1C route to Permanent Residence:

  • No specific investment is required to open and develop the U.S. affiliate.
  • The L-1A visa holder is allowed to have immigrant intent, and it will not endanger the approval of the visa by USCIS or the consulate.
  • The spouse of the L-1A visa holder may obtain a work authorization.
  • An applicant who qualifies for an L-1A visa has the chance to qualify for the EB-1C multinational manager green card, if he/she develops the U.S. business as required, while managing upwards of 10 employees in professional and supervisory positions.
  • The L-1A transferee’s spouse and children under 21 will be issued L-2 dependent visas. The L-2 spouse may apply for a work authorization based on his/her dependent visa.
  • L-1A dependent children under 21 may attend the school of their choice in the U.S., but they do not qualify for a work authorization.
  • The L-1A owner/manager can use any available investment funds to develop his/her U.S. business rather than invest half a million dollars in someone else’s business over which he/she has no direct decision-making or management control.
  • The L-1A manager has managerial, and often also financial, control over the development of the U.S. business.

Potential disadvantages of the L-1A manager transfer visa/EB-1C green card route:

  • USCIS looks to deny any applicant for the L-1A manager visa and the EB-1C green card when it knows that the L-1A manager owns the U.S. company based on their interpretation of the law governing the L-1A visa and the EB-1C green card to the effect that the L-1A visa and the EB-1C green card are supposed to be only for employees, not owners of the business, and so USCIS denies them based on the theory that since the owner of the business cannot be fired, then he or she is not truly an employee of the U.S. business.
  • When the L-1A visa is applied for based on a new business, the new business must rent, for at least one full year, an office space or other facility sufficiently large in size to accommodate all the employees that the company plans to hire by the end of the first year (and the number of employees by the end of the first year must be at least 5-10, and those employees must make up a complex, multi-level, multi-department hierarchy).
  • The applicant for the L-1A manager transfer visa must have managed a sufficiently large organization with multiple levels of managers, multiple departments, each with its own hierarchy, with at least 5+ employees, same as the requirements for the job with the U.S. company based on which the applicant is applying for the L-1A manager transfer visa. If the foreign position does not meet these requirements, the applicant for the L-1A manager transfer visa will have difficulty obtaining approval of the L-1A visa and will have no chance of obtaining the EB-1C green card.
  • If the person who wants to come through the L-1A visa/EB-1C green card route currently owns and operates a business in one of the Persian Gulf countries, and has a local partner who owns a majority share in that business, then it would be necessary for that local business partner also to own a majority in the U.S. company or for the U.S. company to be a subsidiary of the company in the Persian Gulf country.
  • If the U.S. affiliate has been active for less than a year, the initial L-1A visa is issued for just one year. By visa renewal time, many L-1A managers’ visas are not extended because the USCIS examiner decides, in his complete discretion, that the L-1A manager’s job duties in the U.S. business, the size of the manager’s salary, the size of the business that he is managing, the number of employees he manages, the level of complexity, skill, and education of the employees the manager supervises, the nature of the manager’s job duties, the amount of the manager’s pay, and so forth, do not satisfy very subjective standards proving that the L-1A manager is working in a “truly managerial or executive capacity”.
  • USCIS keeps raising the standards for what qualifies or does not qualify from year to year, and so what qualified last year no longer qualifies this year, and what qualifies this year, will no longer qualify next year. Therefore, the L-1A manager and investor invest in an atmosphere of not knowing, after all the investment and effort expended on building the U.S. business, whether the L-1A visa will be extended and/or the EB-1C green card will be approved.
  • The L-1A manager visa can be extended in two-year increments up to a maximum of 7 years. If the L-1A manager/business owner does not qualify for and obtain the EB-1C green card, and has already spent 7 years in the U.S. in L-1A status, he would have to spend a full year out of the U.S. before being eligible again to obtain an L-1A visa. L-1A manager/business owner spending a year outside of the U.S. could be disastrous for the U.S. business.
  • Often, the profit margin of the U.S. business does not permit hiring as many employees as are required for the foreign manager’s L-1A visa renewal, and the visa will not be renewed.
  • At times, foreign L-1A managers, who hire and manage the 10+ professionals needed to qualify for the EB-1C multinational manager green card, overextend the financial capacity of the business, and the business fails.
  • If the L-1A manager’s children turn 21 before the business is sufficiently developed to qualify the foreign manager for the EB-1C multinational manager green card, the children will not qualify for the green card with their parents.
  • The foreign affiliate needs to be actively operating until the L-1A transferee has obtained the EB-1C green card. It can cause the L-1A manager and owner of the U.S. business to become spread thin trying to manage business on two different continents at the same time.

The EB-5 Immigrant Investor Green Card

The EB-5 green card is conditional for a two-year period, and then after USCIS approves the I-829 petition for removal of conditions, then the EB-5 investor obtains unconditional permanent residence. The following are the requirements for qualifying under the EB-5 immigrant investor program:

1. The EB-5 visa requires an investment of $500,000 in one of the more than 800+ government-approved Regional Centers in the U.S.

2. A Regional Center is a legal entity, organization, or a municipal or state agency that has been designated as a Regional Center by USCIS (U.S. Citizenship and Immigration Services), which enables foreign nationals to qualify for permanent residence based on their investment in a Regional Center Project.

3. A Regional Center sets up limited partnerships (or a private company sets up limited partnerships in co-operation with a regional center), each with its own business activity, and manages the business of the limited partnerships as the general partner. Foreign investors who wish to obtain permanent residence in the United States may become limited partners through a $500,000 investment in a project. The investor is not involved in the daily management of the EB-5 project business.

4. Regional Centers must create at least 10 new, full-time jobs per investor for the investors to be approved for permanent residence. These jobs can be direct, indirect, or induced jobs. Each Regional Center project has a “job creation methodology,” based on which an economist calculates the number of jobs that will result from the project being carried through to completion.

5. The investor must prove that he/she has invested funds that were obtained through legitimate means such as employment, business ownership, investment, inheritance, or a gift. If the EB-5 investor lives in, and earns income in, a country with a personal income tax, USCIS expects for the investor to provide income tax returns from that country of current residence, and to document clearly how the investment funds were obtained.

6. USCIS requires that the investment be “at risk” of partial or complete loss in the commercial sense; thus, the Regional Centers are not permitted to guarantee the return of the investment funds.

EB-5 Immigration Processing:

  1. After the investor has made a $500,000 investment in the Regional Center of his/her choice, the immigration attorney files the Immigrant Petition with USCIS on behalf of the investor. At this stage, processing currently takes 16+ months.
  2. Upon approval of the initial petition, the attorney files for consular processing of an immigrant visa for the investor and his/her family, or for adjustment of status in the U.S., if the investor is in the U.S. with a long-term visa. Consular processing typically takes 5-6 months, while adjustment of status in the U.S. typically takes 3-6 months.
  3. The initial conditional Green Card is issued for 2 years. In the final 90 days before the end of the 2 years, the investor’s attorney must file for the removal of the green card condition. To qualify for the permanent green card, the investor must prove to immigration that the investment is still in place and that the Regional Center has followed through with the project, and that has had the effect of creating 10 jobs per investor, in accordance with the previously approved business plan job creation calculations in the economist’s report. Processing of the I-829 petition typically takes about 9-12 months.

Advantages of the EB-5 Regional Center Immigrant Investor Program:

  • If the EB-5 investor invests in a reputable and reliable regional center, there is much more predictability and reliability of obtaining permanent residence than on the L-1A visa/EB-1C green card path, since USCIS requirements and standards for deciding L-1A visa and EB-1C green card petitions are constantly being tightened, are very subjective and are decided in the sole discretion of the USCIS examiner.
  • The EB-5 investor, who invests in a regional center, is not burdened with operating a business in the U.S., with hiring employees, etc., and can lead his life in the U.S. however he or she best sees fit.
  • It can take multiple years for the L-1A manager to develop the U.S. business to the point that it might qualify him or her for the EB-1C green card, or it might never reach that point because very often the development of small businesses does not go as planned, particularly in a very competitive market like the U.S. I would also add that many U.S. competitors resort to underreporting their income on their tax returns, employing illegal immigrants for less, and so forth, which enable them to offer more competitive prices than the L-1A manager’s business because the L-1A manager’s business must abide by all the laws, since they are undergoing scrutiny by USCIS every year or two, and so everything must be done in the proper way.
  • An investment in a Regional Center qualifies investors immediately to apply for permanent residence, which means that children of the EB-5 investor can have their age locked in at under 21 years of age, if they are under 21 at the time of filing the initial I-526 petition, whereas the children of the L-1A manager may age out while waiting for the business to qualify the L-1A manager to apply for the EB-1C Green Card.
  • Investors in an EB-5 regional center project invest a maximum of $500,000, and pay a program fee to the regional center of approximately $50,000, but their investment will not go any higher than that. The L-1A manager who owns the business himself, might start with a lower initial investment amount, but the business could ultimately require investments even exceeding $500,000 in order to build and maintain the business.

Disadvantages of the EB-5 Regional Center Program:

  • Under the Regional Center version of the EB-5 program, the investor does not manage the business him/herself. For entrepreneurial investors, this is a disadvantage, since they typically like to have more control over their own destiny. For people who want to retire to the U.S. and not work, or who want to work as an employee in a type of job that would not normally qualify for a work visa in the U.S., this is not a disadvantage.
  • Depending on the job methodology of the chosen Regional Center, there is a risk that a Regional Center might not succeed in creating the required 10 jobs per investor, and then the investor would not be granted permanent residence.
  • If the EB-5 investor does not do the necessary due diligence on the Regional Center Program or rely on solid investment advice, he/she may run the risk of investing in a project that will fail, and thus lose the investment funds.
  • The immigration process under the EB-5 Regional Center Program is currently taking 22+ months to complete, whereas the L-1A manager can come to the U.S. and bring his family in just a couple of months. However, in the case of a new business, the L-1A manager would have to wait a minimum of one before he can petition for the green card, and, in practice, it actually takes multiple years in order for the business to reach the point of meeting the requirements for the EB-1C green card.

While the idea of managing one’s own business certainly sounds more attractive than investing in a regional center program, with the funds being managed by someone else, when it comes to the immigration process in the U.S., investing in an established and proven EB-5 regional center program turns out to be the more reliable option for obtaining permanent residence in the U.S.

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Anthony Olson, P.A. - Sarasota Immigration Attorney 
2020 Cattlemen Road, Suite 100, Sarasota, FL 34232 See map 
Telephone:  +1 (941) 362-7100 
Website address: http://www.immigrationvisausa.com/ 
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