Pitfalls Facing SME Multinational Corporations Sponsoring US Immigrant Visas for Managers and Executives

Since 1970, multinational companies have been able to sponsor their executives and managers for immigration to the United States. Such was the importance of international commerce to Congress that it accorded “multinational managers and executives” the premier preference category among employment-based immigrants. (There are five tiers, or “preference categories” of US employment-based visas.) The first preference employment-based immigrant visa category, also known as “EB‑1”, provides the fastest path to immigration among employment-based immigrants.

The confluence of globalisation and hi-tech since 1970 has led to ever-smaller companies establishing and maintaining international offices. Whereas the 20th century stereotype of a multinational company might connote Ford Motor Company, hiring thousands of employees, many 21st century multinational technology companies employ only a few dozen employees worldwide. This phenomenon has led to what one European Commission report refers to as the “internationalisation of small and medium-sized enterprises (SMEs)”, and the Harvard Business Review refers to as “the rise of the nano-multinational”.

Under existing US immigration statutes, multinational managers or executives at SME multinationals should be just as eligible for immigration under the EB-1 immigrant visa category as their Fortune 1000 counterparts. But the United States Citizenship and Immigration Services (USCIS) bureaucracy has proved far more sceptical of EB-1 immigrant visa petitions filed by SME multinational corporations, and is thus much more likely to deny immigrant visa petitions.

To state the concern simply, the USCIS only wants to grant EB-1 immigrant visas to employees that are genuinely performing managerial or executive duties, as opposed to performing the mere day-to-day functions of the enterprise. Imagine, for example, three people forming a software company, one with the title of CEO, the second with the title of CTO, and the third with the title of COO. What does the status of “chief executive officer” even mean when the CEO is simply one software engineer among three? What does the title mean if the CEO’s duties are primarily professional (developing the company’s products) and not executive?

The burden falls upon the petitioning company to demonstrate that their sponsored manager or executive has duties that are in fact managerial or executive in nature, and that they are not simply jumped-up titles describing a co-founder who is primarily performing professional, as opposed to managerial, tasks. Indeed, occasional managerial or executive tasks are insufficient to support an EB-1 visa petition. It is necessary to demonstrate that those managerial or executive tasks make up the majority of that employee’s daily duties.

Counsel for SME multinationals must be aware of this problem before sponsoring any of their managers or executives for immigration. It may not be intuitive that the CEO of a small multinational company might not be eligible for US immigration, but engaging in verbal hand-waving to describe a managerial employee’s duties may not be enough to secure approval of an EB-1 immigrant visa petition. It will not do to simply describe the CEO’s duties by entering a generic list of executive responsibilities. A recent federal appellate court decision proves instructive.

In Ren v USCIS, the Fourth Circuit Court of Appeals upheld a federal district court decision affirming the USCIS’s denial of an EB-1 immigrant visa petition to a Chinese general manager being sponsored for US immigration. One dictum from the decision encapsulates the court’s (and the agency’s) concern (emphasis added):

“The USCIS fairly described the whole submission, and it did so by highlighting specific passages that supported its decision. The four-page portion of [the SME multinational’s] letter that [they] claim to be sufficiently specific is filled with fluffy descriptions devoid of any real substance. Indeed, it largely reads more like a collection of one-liners useful for resume drafting than a meaningful description of the duties that [the SME multinational manager] actually performed. See, eg, Judicial Assessment 55 – ‘[The general manager] provided managerial and executive leadership to the marketing/product development functions; he implemented new business acquisition initiatives to ensure [the company’s] continuous growth and sustainability in the global markets.’”

In footnote 6, the court recounted the language it found so unpersuasive:

“For example, the [petitioning company’s] letter states that [the manager] (1) ‘introduced an Enterprise Resource Planning (ERP) management system, which built complete core systems and rules for HR management, financial management and business management’; (2) led participation efforts in ‘major international fairs (such as the Canton Fair)’; (3) introduced ‘worker-friendly ergonomic workbenches’; (4) ‘introduce[d] the very advanced, internationally recognized Tempering Valve Safety System for the Production Department to ensure... absolute safety through the entire production process’; and (5) ‘introduced the Gasifier system to greatly reduce the energy consumption for the enterprise and the product manufacturing cost’.”

Now, at some level, managerial duties can only be explicated so far, and one can sympathise with the petitioning company. They thought they were indeed explaining managerial duties in some detail, only to find that no matter the level of detail they provided, it was deemed insufficient, without guidance as to exactly what details might be missing.

In order to overcome the scepticism that the USCIS might display toward the managerial or executive nature of, say, your multinational SME’s CEO, counsel must keep in mind the following points:

Always keep in mind that the USCIS’s attitude towards an SME multinational’s immigrant visa petition is not co-operation but rather, scepticism. Details matter when describing the managerial or executive duties of the sponsored worker. But it is also important to illustrate the role’s managerial nature with physical evidence to back up the claims. The easier counsel makes it for the USCIS Examiner to truly understand the duties, and to believe they are more than just “fluffy descriptions”, the more likely it is that the immigrant visa petition will be rapidly approved.