How EB-1C Abuse Works

The EB-1C green card is among the most prestigious immigrant visas available. It offers great advantages and perks, which are helpful to qualified workers who wish to live and work in the U.S. However, many believe that changes need to be made to the policies surrounding this green card in order to avoid EB-1C abuse. Find out how EB-1C filing is being abused and where what can be done to fix it.

EB-1C Background

In order to understand how the EB-1C has been abused, we first need to get up to speed on how one qualifies for this green card. The requirements are as follows:

• You must be a manager or executive of a multinational company that has a branch or office in the United States
• You must have worked at a foreign branch of the company for at least one year as a manager or executive in the three years leading up to your EB-1C petition.

The USCIS goes on to further demonstrate the requirements for a manager or executive:

• A manager is a worker who oversees the daily tasks of reports. He or she is responsible for the wages, employment status, and schedule of those underneath them.
• An executive manages managers and is able to make far-reaching decisions on behalf of the company with little or no supervision.

If you qualify for an EB-1C, then your employer simply needs to file an I-140 on your behalf. Unlike most of the other employment-based green cards, the EB-1C does not require a PERM Labor Certification, which exists to ensure that you are being paid proper wages and that the jobs of U.S. workers are being protected.

The EB-1C is also advantageous because, being in the first preference category, the waiting times for priority dates to become current are usually much shorter than all other visas, even for heavily oversubscribed categories such as China and India.

Like the other green cards in the first preference level, the EB-1C does not require any certain educational level. However, unlike the other green cards, it also does not require any exceptional or outstanding ability or achievement, making this a prime opportunity for certain companies to take advantage of the system and engage in EB-1C abuse.

EB-1C Abuse

If you compare the requirements associated with the EB-1C to those of the other two first-preference green cards, the EB-1A for those with extraordinary ability, and the EB-1B for outstanding researchers and professors, the qualifications seem simple. For the EB-1A and EB-1B, you need to be a Nobel Prize winner or you need to show that you have contributed significantly to your field as a whole. Not an easy feat.

On the other hand, you just need to have been a manager overseas for a multinational company to earn an EB-1C. As the current administration’s grip tightens around the H-1B visa, those fraudulent petitioners turn to EB-1C abuse. This is especially common among Indian petitioners due to the long priority date waiting time for the EB-2 and EB-3 green cards.

Imagine the following scenario:

An Indian worker would like to become a lawful permanent resident in the U.S. Rather than pursue an education and end up backlogged in the EB-2 filings, he is hired by an outsourcing firm in India that promotes him to manager in under a year. He works as a manager for one year and is then eligible for the green card with the shortest waiting time, the EB-1C. As soon as he is transferred, another manager is promoted and the cycle begins again. When he arrives in the U.S. the company displaces a U.S. worker whose wages were higher and replaces that worker with the Indian EB-1C holder.

This is compounded by the fact that the EB-1C does not require a PERM Labor Certification, which means that the Department of Labor does not mandate that the EB-1C holder must be paid the prevailing wage and no recruitment needs to take place at the job location to extend the work to qualified local workers. Unscrupulous firms can use this to hire cheap labor overseas and transfer them to the U.S. as EB-1C holders for the same low wages.

This seems to be less of a loophole and more of a lack of strict requirements for a very prestigious green card. The opportunity for EB-1C abuse and exploitation has not been missed by those looking to game the system. While H-1B petitions are steadily dropping, we may start to see an increase in EB-1C petitions.

This also presents an unfair disadvantage to immigrants who have been working in the U.S. under a nonimmigrant status. These people need to leave the U.S. to work for an overseas multinational company as a manager for a year before being eligible. Meanwhile, outsourcing firms are churning out multinational managers left and right who have never worked in the U.S.

Additionally, once an immigrant has entered the U.S. as a legal permanent resident, a company can replace local U.S workers with the cheaper alternative, violating one of the key principles of the Department of Labor and the Department of State.

Ultimately, this is not fraudulent filing, as the candidates presented do comply with the qualifications for an EB-1C. Many people, however, would like to see changes made to the EB-1C requirements.

What Changes Can Be Made?

So there is EB-1C abuse on the rise, what can we do about it? Several petitions have been made to Congress for changes to the EB-1C category.

One suggested change is to have the EB-1C requirements include the word “extraordinary” or “outstanding” and all that those words entail. This is to have the EB-1C be on par with its siblings the EB-1A and EB-1B. By making “extraordinary” a requirement, it eliminates the potential for abuse by underqualified foreign candidates. An example of this is making it so that only high-level executives can apply.

Another change that has been proposed is to change the preference level of the EB-1C managers to the second preference level. Executives can continue to apply for the EB-1C, but managers must apply for the EB-2. This prevents outsourcing firms from using the EB-1C to circumvent the long priority date waiting times for EB-2 green cards.

Additionally, a large part of the EB-1C abuse problem is the fact that it can be used to supply cheap labor to the U.S. This is only made possible because the Department of Labor does not require a PERM, which obligates employers to pay employees the prevailing wage for the area. By requiring a PERM for the EB-1C, the USCIS could eliminate the avenue for underpaid managers.

A salary minimum has also been proposed. By requiring a minimum compensation of $150,00 or $200,000 annually, the USCIS can put a stop to frivolous filing for underpaid managers. This has also been a solution suggested to prevent H-1B fraud.

Some even argue for a removal of the EB-1C designation altogether, stating that it is a high-level green card that is based on position rather than merit.

Lastly, petitions are calling for the requirement of 1 year of overseas work as a manager or executive to be removed. This is because it does not impact the outsourcing firms that hire overseas to begin with and instead it puts those that have been working in the U.S. at a disadvantage.

Keep in mind that these are mere suggestions and, as of this post, no motion has been made by any governmental department to act on any of these ideas. If you are unsure about your position or involvement with EB-1C abuse, your immigration attorney can help you better understand your case.

How VisaNation Law Group Immigration Attorneys Can Help

If you read this post and realize that you have been a part of or a victim of EB-1C abuse, it’s time to start doing things the right way. Having an expert examine your case and advise you on the best course of action can help you avoid consequence and to legitimately acquire your green card.

At VisaNation we specialize in employment-based immigration. Having filed countless EB-1C petitions, we understand exactly what goes into obtaining this green card in a legitimate way. From gathering evidence to filing the petition, our team of expert attorneys is at your disposal.

To get in touch with a VisaNation Law Group attorney, you can fill out our contact form and schedule a consultation today.