CASE: I-485 Adjustment of Status Based on Approved I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)
EMPLOYER: Multinational Tire Corporation
BENEFICIARY: Korean
LOCATION: Akron, Ohio
Our client is a General Manager of a multinational tire corporation in Ohio. He is from South Korea, and he had worked for its parent company for 6 years in positions of increasing responsibility including that of Research and Development team manager. He came to the United States in January 2018 with an E-2 visa to work for the current petitioner company (wholly-owned subsidiary of his previous employer). He contacted our firm in August 2018, and discussed us his chances of getting a green card. Based on our client’s education and professional background and his current position at the worksite, our office determined that he was clearly eligible for the EB-1C classification for his I-140 petition. Our client eventually retained us for his I-140 and subsequent I-485 adjustment of status application.
An employer can petition for its foreign employee under INA § 203(b)(1)(C) if it demonstrates the following: (C) Certain multinational executives and managers – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.
According to the INA §101(a)(44), 8 U.S.C. §1101(a)(44) and 8 C.F.R §204.5(j)(2), “executive capacity” means an assignment in an organization in which the employee primarily: (1) Directs the management of the organization or a component or function; (2) Establishes goals and policies; (3) Exercise wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.
Also, the mentioned statutes define “managerial capacity” as an assignment with the organization in which the employee personally: (1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.
After our office was retained, we prepared a thorough cover letter and obtained all necessary supporting documents from our client and the petitioning company. In our brief, we clearly demonstrated that our client met the requirements set forth in the INA §203(b)(1)(C). First, the prospective U.S. employer (Petitioner-Company) has been doing business for at least 1 year. Second, the prospective employer (Petitioner) 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 abroad. Third, if the worker is already employed in the United States, he or she was employed outside the United States for at least 1 year in the 3 years preceding admission as a non-immigrant in an executive or managerial capacity by the petitioner or by its parent branch, subsidiary, or affiliate. Last, the alien is to be employed in the United States in a managerial or executive capacity.
In this case, the Petitioner-company has been doing business for 28 years in the United States. In addition, Petitioner-Company is the wholly-owned subsidiary of its Korean parent company where our client was employed for 6 years. Moreover, our client was employed outside the U.S. for at least 1 year in the 3 years preceding admission as a non-immigrant in an Executive or Managerial Capacity by the Petitioner’s parent company in South Korea. Our client served as a team manager and later became senior manager for the parent company. He personally supervised and controlled the work of other researchers and engineers for new types and models of tire developments, and was primarily responsible for the company’s various new tires. Lastly, our client is to be employed in the United States as a General Manager for the petitioner.
On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), an organizational chart, and a dispatch order. Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea. The evidence included a copy of the certificate of ownership, a copy of the business registration certificate, a copy of the approval for overseas investment, and a copy of the annual report and consolidated financial statements. The I-140 Petition was filed on November 16, 2018.
However, on May 16, 2019, the USCIS Nebraska Service Center issued a Request for Evidence (RFE). The RFE letter requested our client to demonstrate the qualifying relationship between the parent company in South Korea and his current employer. Moreover, the USCIS requested our client to show whether he met the requirement of “one year managerial or executive position abroad.”
On the RFE response, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), and an organizational chart. Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in South Korea. The evidence included a copy of the certificate of ownership, a copy the business registration certificate, a copy of the tax records, etc. Our office filed the Response to RFE on August 5, 2019. Eventually, on August 26, 2019, the I-140 petition was approved.
On November 8, 2019, our office filed an I-485 adjustment of status application for our client and his derivative family members. Everything went smoothly and the receipt notices and fingerprint appointment came on time. His case was scheduled for the interview in March 2020; however, it was cancelled due to the COVID-19 pandemic.
Nevertheless, on July 9, 2020, the USCIS approved our client’s adjustment of status application without the interview. On the same day, the CIS approved our client’s derivative family members’ adjustment of status applications as well.