求助关于EB1-C的问题 - 未名空间MITBBS历史存档

m*y2013-07-02 07:07

1 楼

目前中国公司已经具备开设海外分公司的实力，可是这名高级主管只有在2009-2010年
在国内工作过，之后就以学生身份来到美国，现在在一家公司做H1-b.由于美国的分公
司是新建的，需要一年以后才能提出申请。
想问问有没有办法在这个主管不离开美国的情况下，替他申请Eb1-C呢? 谢谢！

d*n2013-07-02 07:07

2 楼

看看这个链接：http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11243/0-0-0-12613/0-0-0-13392.html
特别是下面的部分，最好找个移民律师详细问一问：
(j) Certain multinational executives and managers.
(1) A United States employer may file a petition on Form I-140 for
classification of an alien under section 203(b)(1)(C) of the Act as a multi-
national executive or manager.
(2) Definitions. As used in this section:
Affiliate means:
(A) One of two subsidiaries both of which are owned and controlled by the
same parent or individual;
(B) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the same
share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United States to
provide accounting services, along with managerial and/or consulting
services, and markets its accounting services under an internationally
recognized name under an agreement with a worldwide coordinating
organization that is owned and controlled by the member accounting firms, a
partnership (or similar organization) that is organized outside the United
States to provide accounting services shall be considered to be an affiliate
of t he United States partnership if it markets its accounting services
under the same internationally recognized name under the agreement with the
worldwide coordinating organization of which the United States partnership
is also a member.
Doing business
means the regular, systematic, and continuous provision of goods and/or
services by a firm, corporation, or other entity and does not include the
mere presence of an agent or office.
Executive capacity
means an assignment within an organization in which the employee primarily:
(A) Directs the management of the organization or a major component or
function of the organization;
(B) Establishes the goals and policies of the organization, component, or
function;
(C) Exercises wide latitude in discretionary decision-making; and
(D) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
Managerial capacity
means an assignment within an organization in which the employee primarily:
(A) Manages the organization, or a department, subdivision, function, or
component of the organization;
(B) 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;
(C) If another employee or other employees are directly supervised, has the
authority to hire and fire or recommend those as well as other personnel
actions (such as promotion and leave authorization), or, if no other
employee is directly supervised, functions at a senior level within the
organizational hierarchy or with respect to the function managed; and
(D) Exercises direction over the day-to-day operations of the activity or
function for which the employee has authority.
Multinational
means that the qualifying entity, or its affiliate or subsidiary, conducts
business in two or more countries, one of which is the United States.
Subsidiary
means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity
; or owns, directly or indirectly, half of the entity and controls the
entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture
and has equal control and veto power over the entity; or owns, directly or
indirectly, less than half of the entity, but in fact controls the entity.
(3) Initial evidence--
(i) Required evidence. A petition for a multinational executive or manager
must be accompanied by a statement from an authorized official of the
petitioning United States employer which demonstrates that:
(A) If the alien is outside the United States, in the three years
immediately preceding the filing of the petition the alien has been employed
outside the United States for at least one year in a managerial or
executive capacity by a firm or corporation, or other legal entity, or by an
affiliate or subsidiary of such a firm or corporation or other legal entity
; or
(B) If the alien is already in the United States working for the same
employer or a subsidiary or affiliate of the firm or corporation, or other
legal entity by which the alien was employed overseas, in the three years
preceding entry as a nonimmigrant, the alien was employed by the entity
abroad for at least one year in a managerial or executive capacity;
(C) The prospective employer in the United States is the same employer or a
subsidiary or affiliate of the firm or corporation or other legal entity by
which the alien was employed overseas; and
(D) The prospective United States employer has been doing business for at
least one year.
(ii) Appropriate additional evidence. In appropriate cases, the director may
request additional evidence.
(4) Determining managerial or executive capacities.
(i) Supervisors as managers. 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 professional.
(ii) Staffing levels. If staffing levels are used as a factor in determining
whether an individual is acting in a managerial or executive capacity, the
reasonable needs of the organization, component, or function, in light of
the overall purpose and stage of development of the organization, component,
or function, shall be taken into account. An individual shall not be
considered to be acting in a managerial or executive capacity merely on the
basis of the number of employees that the individual supervises or has
supervised or directs or has directed.
(5) Offer of employment. No labor certification is required for this
classification; however, the prospective employer in the United States must
furnish a job offer in the form of a statement which indicates that the
alien is to be employed in the United States in a managerial or executive
capacity. Such letter must clearly describe the duties to be performed by
the alien.

【在 m*****y 的大作中提到】

: 目前中国公司已经具备开设海外分公司的实力，可是这名高级主管只有在2009-2010年
: 在国内工作过，之后就以学生身份来到美国，现在在一家公司做H1-b.由于美国的分公
: 司是新建的，需要一年以后才能提出申请。
: 想问问有没有办法在这个主管不离开美国的情况下，替他申请Eb1-C呢? 谢谢！

m*y2013-07-02 07:07

3 楼

谢谢楼上的回复，现在的问题是，从申请日之前的三年中，受益人一直在美国，不知道
在美国其他公司工作的同时，兼任中国母公司的高管职务，是不是被认可。