EB-5 Visa        EB-1 & L1-A Visa        H-1B Visa        B1 & B2 Visa

EB-1 and L-1A Immigrant and Non-Immigration Investor

Foreign entrepreneurs interested in entering the U.S. market have various nonimmigrant and immigrant visas that may authorize them and selected staff to live and work here. Determining the most appropriate immigration strategy requires an analysis of business needs, legal requirements and family considerations. VS’s experience in the regular transfer of staff in our global network of offices, as well as years representing multinational companies and individual entrepreneurs, uniquely qualifies the firm to represent clients in this area.

Nonimmigrant visas authorize temporary visits or assignments of varying lengths and are generally issued within a short period after application. Immigrant visas that lead to permanent resident status (green card) authorize permanent assignments of unlimited duration, but have longer processing times. Nonimmigrants already in the U.S. may obtain immigrant visa status. The
spouse and unmarried children under the age of 21 can generally derive nonimmigrant and immigrant visa status through the principal visa holder.

Although there are a number of nonimmigrant and immigrant visas available, this memorandum focuses on two of the most frequently utilized classifications: the L-1A nonimmigrant visa for intra-company transferees in an executive or managerial capacity and the EB1 priority worker immigrant visa for multinational managers and executives.

Information about other visas is available on request. Because the requirements for these two visa classifications are very similar, a visa strategy that establishes eligibility for the nonimmigrant visa is likely to also qualify for immigrant visa treatment.


Summary of Visa Requirements

Intracompany Transferee
Nonimmigrant Visa

Multinational Manager/Executive
Immigrant Visa

1. The job offered in the U.S. must be in an executive or managerial capacity.

1. Same as L-1A.

2. The visa applicant must have been employed in an executive or managerial capacity outside the U.S. for a period of not less than 12 months during the 3 year period immediately preceding the visa request.

2. Same as L-1A. If the visa applicant is already in the U.S. on behalf of the company, then the 3 year time period is calculated before the visit began.

3.  The company offering the job in the U.S. and where the visa applicant gained the employment experience outside the U.S. must have a qualifying relationship.

3. Same as L-1A.

4. If the company offering the job in the U.S. has done business in this country for less than 1 year, then there must be proof that sufficient physical premises to do business for at least 1 year have been secured.

4.  Only a company that has done business in the
U.S. for at least 1 year may petition for this immigrant visa.

5. There is no quota that limits the number of L-1A visas available.

5. There is a quota that limits the number of these immigrant visas available each year, but these visas are generally immediately available.

6. Visa applicants and accompanying family members must be admissible to the U.S.

6. Visa applicants and accompanying family members must be admissible to the U.S.

Executive/managerial capacity

U.S. Citizenship and Immigration Services’ (USCIS) regulations define the term managerial capacity to mean an assignment within an organization in which the employee primarily:

1.  Manages the organization, or a department, subdivision, function, or component of the organization;
2.  Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3.  Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
4.  Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professionals.

USCIS regulations define the term executive capacity to mean an assignment within an organization in which the employee primarily:

1.  Directs the management of the organization or a major component or function of the organization;
2.  Establishes the goals and policies of the organization, component, or function;
3.  Exercises wide latitude in discretionary decision-making; and
4.  Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Special Rules for New Offices

If the employee is coming to the U.S. as a manager or executive to be employee at an office in the U.S. that has not been doing business for at least one year, then the USCIS somewhat alters its managerial and executive definitions. In such circumstances, the evidence accompanying the L-1A petition must show that the proposed employment will support an executive or managerial position within one year. Only after the first year of doing business in the U.S. can an EB1 petition for a multinational manager/executive be filed.

For new offices, information must be provided regarding:

  • The proposed U.S. employer's scope, organizational structure, and financial goals;
  • The size of the investment in the U.S. and the financial ability of the employer abroad to compensate the employee and commence doing business in the U.S.; and
  • The organizational structure of the company abroad.

Intracompany Qualifying relationship

There are many intracompany relationships that can satisfy these nonimmigrant and immigrant visas. Here are some common examples:

  • Parent - subsidiary – This is where the U.S. company is ultimately owned by the company outside the U.S. or where the company outside the U.S. is a subsidiary of the company in the U.S. The requirement is most easily satisfied where there is 50-100% ownership, although minority ownership may be sufficient where control is held, such as through a voting proxy.
  • Affiliate – This is where the company in the U.S. and the company outside the U.S. are owned and controlled by the same parent company, individual, or group of individuals.
  • Branch or representative office – This is where one company is merely a branch office (and not a separate legal entity) of the other.

Evidence of sufficient physical premises to do business

Companies that have done business in the U.S. for less than 1 year are required to submit with the L-1A nonimmigrant visa petition evidence that the company has secured sufficient physical premises to do business in the U.S. The USCIS generally accepts commercial lease agreements, sublease agreements, property deeds, letters from landlords and similar forms of evidence. Although USCIS regulations do not prohibit the use of a “home office,” such informal business arrangements are likely to call into question whether the U.S. activities are at a sufficient level to justify the claimed managerial or executive job offered.

Immigrant visa quota

There is no limitation on the number of nonimmigrant L-1A visas that can be issued each year. Unlike each of the employment-based immigrant visa classifications which, like the priority worker classification, are subject to numerical limitation.

This means there is a specific number of visas available each year in each preference category. There is also a limitation on the number of such visas that can be issued annually, based on the country of birth (not citizenship). When the demand for immigrant visas is larger than the supply, a backlog is created. This is known as the "quota". Although the employment-based visa categories are also subject to numerical limitation, most of these categories have no backlog. This is because the demand for immigrant visas in these categories usually does not exceed the supply.


U.S. law requires the USCIS to deny entry to the U.S., as well as any subsequent request to adjust to permanent resident status, to individuals who are not admissible because of any one of a number of conditions. Admissibility issues detrimentally impact only a small percentage of all foreign nationals. The various conditions are beyond the scope of this memorandum, but can be summarized as follows: health- related grounds; criminal related grounds; security related grounds; public charge; immigration violators; and certain others.

A Comparison between EB-5 and EB-1C
Often, people confuse the EB-1(c) multinational transferee immigrant visa with the EB-5 entrepreneur immigrant visa and collectively call them both investment visas. 

In some aspects, EB-1(c) and EB-5 share certain similarities:

  1. Both deal with foreign capital and investment;
  2. Both involve the creation of a new business entity in the U.S. However, for EB-5 cases, some business types such as a troubled business or a regional center company may not be a new enterprise. Moreover, a foreign company may purchase an existing U.S. company to receive an EB-1(c) visa.
  3. Both may possibly create new jobs for U.S. workers.  

However, aside from these similarities, EB-1(c) and EB-5 are drastically different categories and inappropriate application may result in a strategic disaster. 

The EB-1(c) category allows international companies to transfer overseas high level managers or executives to their U.S. entities to take permanent high level managerial or executive positions.  The EB-5 category is for alien individuals who have invested, or are in the process of investing, capital into a new commercial enterprise in the U.S. The purpose of the EB-1(c) visa is to allow companies to cross-fertilize and transfer business practices and commercial knowhow, while the goal of the EB-5 category is to stimulate investment and enhance job creation in the U.S. There is no capital investment requirement for EB-1(c) executives as they work for employers, while EB-5 investors need to invest their own money.

  1. Business Structure

The EB-1(c) category requires a qualified multinational relationship between the U.S. and foreign business entities. This relationship involves a company investment from one entity to another; examples of qualifying relationships include parent companies and subsidiaries or affiliates. Additionally, this petition is used for the transfer of executives between related companies. In an EB-1(c), the U.S. entity is the petitioner and the transferee alien is the beneficiary. The U.S. entity must be in existence for at least one year before it can file an EB-1(c) petition.  A temporary L-1A visa may be available for transferee aliens before the immigration EB-1(c) is filed. 

The EB-5 category is designed for an individual alien investing in a new business in the U.S., a troubled business or, a regional center company. The individual does not need to be associated with any overseas corporation. The investor’s U.S. investment may be in a variety of different forms. For an EB-5 case, the individual investor is both the petitioner and beneficiary.

  1. Funding source and Investment Amount

For EB-1(c) cases, USCIS usually looks into the initial investment between the overseas company and the related U.S. company.  However, there is no hard requirement for the amount of capital invested as EB-1(c) was established to promote commerce between the U.S. and foreign countries. If the U.S. entity is a relatively new investment of the overseas parent company, USCIS often requires evidence of a monetary transfer from the overseas company to the U.S. entity. There is no set minimum for this investment, but the investment amount must be reasonable to cover the costs of the new office.  In practice, we have seen initial investments into the U.S. subsidiary of around $100,000; these EB-1(c) cases were later approved after the U.S. entity began operating. 

EB-5 has stricter guidelines than the EB-1(c) category as it is established to attract foreigners to invest in the U.S. and also create jobs for U.S. citizens and permanent residents. The petitioning individual’s investment must be at least $500,000 in a new commercial enterprise in the U.S.  In some cases, a $1 million investment is required.  In addition, the petitioning individual must prove through solid documentary evidence that the money used for the investment was his or her own money derived from a legitimate source. 

For EB-5 cases, assets acquired directly or indirectly by unlawful means such as criminal activities are not acceptable capital. In practice, USCIS is very strict about reviewing the legitimacy of funds. Cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the investor are all acceptable investments for EB-5 purposes. On the contrary, there is no legality requirement for EB-1(c) cases.

  1. USCIS Review Emphasis

In EB-1(c) cases, USCIS emphasizes the establishment of a corporate structure and scrutinizes the business operations of the petitioning U.S. entity.  The key to success in EB-1(c) cases is to prove that the petitioning U.S. entity has established a corporate structure that will allow the transferee alien to act in a high level managerial or executive function, not just in daily operations or first line worker supervision.  Therefore, in general, 5-7 full time employees are required to establish the corporate structure necessary to satisfy this requirement.  In addition, the U.S. entity must have substantial business operations with commensurate revenue. 

For EB-5 cases, USCIS focuses on the real transfer capital as well as the creation of 10 US jobs, the legitimacy of the source of the assets, and whether the investment created at least ten full-time employment opportunities for U.S. workers.  If the investment is in a USCIS approved “Regional Center,” indirect employment opportunities created by the investment may fulfill the job creation requirements.

  1. Immigrant Alien’s Position and Role

For the EB-1(c) category, the position offered to the transferee must have managerial or executive duties. The position must be at a level that involves policy making, major decision making and/or management of other lower managerial subordinates.  These duties are generally considered alongside the corporate structure of the U.S. entity.  

The EB-5 category does not require an employment offer or a sponsoring employer. In a new business enterprise and troubled business, an investor must be involved in the daily management of the company. Acceptable positions for an investor include acting as corporate officer, board member, etc. If an investor is applying under the Regional Center Program, he/she does not need to be involved in the day-to-day management of the business, nor does the investor need to live in the place of investment.

  1. Individual Qualification

A managerial or executive transferee in the EB-1(c) category must have worked in a managerial or executive level position for the related overseas company continually for at least one year out of the last three years prior to filing the petition. There is no minimum educational or experience requirement, but the transferee must be reasonably qualified to hold the offered position. 

The EB-5 has no educational or experience requirements. No investment experience or specific technical skills are required either.

  1. Petitioner on the Forms

The EB-1(c) I-140 is an employer-sponsored petition, meaning the qualified U.S. entity is the petitioner and the employee is the beneficiary. To file an EB-1(c) petition, the employer files Form I-140 employment-based immigrant petition. 

For EB-5, the investor must file the Petition Form I-526. The individual alien investor is the petitioner; there is no sponsoring employer.

  1. Required Documents

In EB-1(c) petitions, along with the petition forms, the employer should submit a statement of job duties for the offered managerial or executive position. The employer will also need to provide evidence of the business relationship between the U.S. petitioning entity and the foreign company. Documents needed from both the U.S. entity and the foreign affiliate include articles of incorporation or association, financial documents such as tax returns, bank statements, major business contracts, sample invoices, marketing documents, office leases, photographs of the main office, a description of the company’s organizational structure, etc. 

The alien transferee will also need to submit documentary evidence to prove that he or she is qualified to hold the offered position. 

In EB-5 cases, along with petition forms, the alien investor must submit documentation to prove the investment has been made or will be made and that the capital has been lawfully gained. Evidence to prove lawful capital includes sales contracts for homes or property, bank statements, stock certificates, evidence of purchased assets, tax returns, business operations records, or other proof of income. In addition, the investor must provide evidence of the existence of the new enterprise, including business organization documents, articles of incorporation, or other authorization to do business in the U.S. 

Furthermore, the investor must provide evidence showing the creation of at least 10 jobs for U.S. workers. If the new enterprise has already hired employees, the investor can submit I-9 forms and tax records. If no employees have been hired, the investor can submit a business plan to demonstrate that 10 U.S. employees will be hired within the next two years. Investors in the “Regional Center Program” will need to provide evidence that 10 jobs have been or will be created in a target employment area along with statistical or expert evidence that the targeted employment area has a high unemployment rate.

  1. Permanent vs. Conditional Green Card

Once the EB-1(c) petition is approved, the transferee and his or her immediate family members can apply to adjust their status if they are already in the U.S. or can apply for an immigrant visa at a U.S. consulate abroad. Once they receive their visas and enter the U.S., or upon adjustment of status, they will receive permanent green cards, without any conditions.

However, those in the EB-5 category need to undergo a conditional green card period.  Once the EB-5 petition is approved, the investor may file for an immigrant visa or adjustment of status. Unlike the EB-1(c), the initial permanent resident status granted to the investor is conditional for two years. Conditional green card status confers the same rights for the two year period as the permanent unconditional green card given to those with approved EB-1(c) petitions. 

In order to remove the conditions on his or her green card status, the investor (and his/her family members) must request removal of the conditions within 90 days of the expiration of the two year green card. Investors must file Form I-829 “Petition by Entrepreneur to Remove the Conditions” to do so. Along with Form I-829, the investor should submit evidence that proves he or she has met all requirements of the EB-5 category including documents demonstrating the required amount has been invested in a new enterprise and ten full-time positions for U.S. workers have been created.

The investor will remain in valid status while the I-829 petition is pending; investors are also allowed to travel during this period. If the investor fails to request removal of the conditions, his or her conditional resident status will be terminated. Once the conditions have been removed, the investor and his or her family members will receive permanent unconditional green cards. 

EB-1(c) is best suited for those who are in high level managerial or executive positions in overseas companies that already have U.S. business exposure and are familiar with U.S. business operations.  For individuals with limited business experience or for those who do not have a position within a multinational company but with considerable financial resources, the EB-5 category might be a better option. Furthermore, the EB-5 may also be a good option for those who do not want to work under a corporate structure or who do not have the corporate authority to transfer.

  1. Time difference

From a procedural perspective, the EB-5 green card process may take longer and involve more uncertainty as the review for removal of conditions comes two years after approval of the initial conditional green card. However, the EB-5 has unique features that provide options to those who do not have business operational experience by allowing them to invest through a regional center program.  Ultimately, if the investment program is stable, final approval of unconditional permanent residency is expected for the majority of EB-5 cases.

  1. Requirement for the U.S. Company

The key to success in EB-1(c) cases is to prove that the petitioning U.S. entity has established a corporate structure that will allow the transferee alien to act in a high level managerial or executive function, not just in daily operations or first line worker supervision. In general, 5-7 full time employees are required to establish the corporate structure necessary to satisfy the requirement.  In addition, the U.S. entity must have substantial business operations with commensurate revenue.

Furthermore, it is imperative to prove that the investment created at least ten (10) full-time employment opportunities for U.S. workers.  If the investment is in a USCIS approved “Regional Center,” indirect employment opportunities created by the investment may fulfill the job creation requirements. 

Since both EB-1(c) and EB-5 involve complicated business and legal issues, it is recommended that companies or individuals interested in these categories consult and seek advice from experienced attorneys at the beginning of the process to avoid unnecessary mistakes or setbacks.