EB-1C with a small US subsidiary: can your company carry the green card?

Many European companies start small in America. A corporation, a rented office, two or three employees, and at the top the person who already carried responsibility back home. At some point the question comes up: can this assignment turn into staying for good? The EB-1C, the green card for multinational managers and executives, is the obvious route. Whether it works with a small subsidiary is not decided by headcount alone.

This guide walks through the points where small and young US companies most often get stuck: the year of doing business, who is allowed to file at all, staffing, the job description, the salary and the company back home. For an overview of the whole category, see the guide to the EB-1C green card; every requirement in detail is covered under EB-1C requirements.

1Small is fine, new is not: the first year of doing business

The key limit for young subsidiaries is in 8 CFR 204.5(j)(3)(i)(D): when the petition is filed, the US employer must have been doing business for at least one year. The EB-1C has no new office rule like the one in the L-1. The USCIS Policy Manual says so explicitly: anyone coming to the US to open a new office cannot get this green card. The manager or executive must be joining an existing business.

The reason lies in the nature of the category. With a new office L-1, USCIS takes another look after the first year before extending. The EB-1C, by contrast, is permanent, and unlike the EB-5 there is no conditional green card after which the company would be reviewed again. So USCIS checks up front.

1.1Registered is not the same as doing business

What counts is not the date of registration with the Secretary of State but the date business actually began. Under the definition in 8 CFR 204.5(j)(2), doing business means the regular, systematic and continuous provision of goods or services. An agent, a mailing address or a registered office alone is not enough. A corporation that has existed for two years but has only been selling for eight months is still too young for the EB-1C.

One relief helps many subsidiaries: the customers do not have to be unrelated third parties. Under a decision of the USCIS appeals office cited in the Policy Manual, it is enough for the US company to provide goods or services regularly, systematically and continuously to affiliated companies. So a sales or service subsidiary that initially works mainly for its parent can be doing business within the meaning of the rule, as long as it does so demonstrably and on an ongoing basis.

For planning, this means: if you start with an L-1 for a new office, the earliest you can file the EB-1C is once the subsidiary has been in business for a full year. How the two processes fit together is explained in the guide From L-1A to EB-1C green card.

2Who can file the petition: subsidiary yes, branch office no

You do not file the EB-1C yourself. The petitioner on Form I-140 is the US employer, and it must be related in a specific way to the company you worked for abroad: as the same company, or as its parent, subsidiary or sister company. USCIS looks at ownership and control. Ownership means the right to the assets with full power to control them; control means the right to direct the establishment, management and operations of the company.

For small structures, three points are decisive, and they work differently than with the L-1:

• No branch office. A US office of the foreign company that is not a separate American entity can transfer managers under the L-1, but cannot file an EB-1C petition. The petitioner must be a US citizen or a US entity, meaning a corporation, a partnership or another legal entity under US law.
• No sole proprietorship. A sole proprietorship does not exist separately from its owner. If it offers its owner a job, USCIS treats that as an impermissible self-petition.
• Your own corporation works. A company with just one shareholder or just one employee is still a separate legal entity and can file a petition for that shareholder.

There is one more limit investors should know about: if you only hold a temporary visa yourself, for example as an E-2 investor, you cannot offer anyone a permanent position for the EB-1C. It has to be the US company, not its shareholder as an individual. If you are only now setting up the subsidiary, the Corporation (Inc) is the usual choice, because the stock ledger, minutes and resolutions document ownership and control cleanly.

If you rely on voting proxies rather than majority ownership, you must show that these proxies are irrevocable from the day of filing until the decision. And the relationship must remain in place until you become a permanent resident. The table below shows the common setups.

3Staffing: what USCIS sees with five employees

The fear many owners of small subsidiaries share: not enough staff. The law takes that concern seriously and limits it at the same time. Under INA 101(a)(44)(C), if USCIS uses staffing levels as a factor, it must take into account the reasonable needs of the organization in light of its overall purpose and stage of development. Nobody is a manager just because they lead many people, and nobody fails to be one just because they lead few.

The Policy Manual spells out what that means. The US company must be doing business at a level that requires someone who primarily performs managerial duties. USCIS looks at the nature and size of the business, the organizational structure and the product or service. The petitioner has to show the company's need for staff and structure. Conversely, the officer may not apply their own undocumented idea of standard business practice as the yardstick.

3.1Who handles the day-to-day work

The key question is not how many people are on the payroll but who does the daily work. For executives, the Policy Manual says there must be enough staff, which can include contractors or others, so that the executive primarily directs. A title like President or CEO alone does not make anyone an executive, not even an owner who spends part of their time on management.

Even a one-person office is not ruled out. But the Policy Manual notes how hard that is to prove: someone working alone usually spends most of their time doing the work the business does. In the end it is the full picture that counts: the business, the structure, the staff, your authority, the work of the others and whether it frees you from operational and administrative tasks.

3.2The group behind the subsidiary counts too

For small subsidiaries of large companies, one point matters a great deal, and the Policy Manual backs it with a precedent decision of the appeals office. Matter of Z-A-, Inc. from 2016, decided under the L-1A, states that staffing must be assessed against the reasonable needs of the organization as a whole, including its affiliated companies. If you sit in the US with two people but run a function carried by teams at headquarters, you can show that. How the function manager role is assessed is explained in the guide Manager, executive or function manager?

Two limits apply here as well. A first-line supervisor is not a manager merely because they supervise, unless the people supervised are professionals with the relevant education. And artificial layers of hierarchy or inflated titles do not help. Three employees titled Director, Senior Manager and Head of Operations who all sell do not make you a manager of managers.

4A job description a small company can support

For smaller organizations, the officer may request a description of the entire executive and managerial structure, with job descriptions for every managerial position. In a five-person subsidiary, that quickly means the whole company. It helps if that description is already in the petition.

The Policy Manual spells out what officers look for. Specific detail carries real weight. Simply repeating or paraphrasing the wording of the statute does not meet your burden of proof. If you also handle operational or administrative tasks, your description has to show how much of your work is managerial and how much is not. If most of your work is not managerial, you are neither a manager nor an executive under the law.

For a small subsidiary, that means in practice:

• Describe your duties with time percentages, and make sure those percentages fit the size of the company.
• For every task you don't handle yourself, say who does: US employees, contractors, service providers or the parent company's team.
• Submit an organizational chart whose levels reflect the actual work, with names, duties and salaries.
• Prove what the levels below you actually do: payroll records, contracts with service providers, invoices, work product.

Clean payroll records are more than red tape. Payroll and filings for your US employees are the proof that the staff exists. If you haven't set that up yet, Payroll is the building block you need.

5Ability to pay: the financial review

Every petition that requires a job offer must show that the US employer can pay the offered wage. That is set out in 8 CFR 204.5(g)(2). The ability to pay must exist from the priority date and continue until the green card is granted. For the EB-1C, the priority date is the day USCIS receives the complete, signed petition with the correct fee.

As evidence, the regulation lists annual reports, federal tax returns or audited financial statements. Only if the employer has at least 100 employees may USCIS accept a statement from a financial officer instead. So a small subsidiary submits numbers. It can add profit and loss statements, bank statements and personnel records, and USCIS can request them.

For a young subsidiary, that means the first tax year should be closed and filed before the petition goes in, or audited financial statements should be available. A loss in the first year is not automatically the end, but then the rest of the evidence has to carry the case. The EB-1C regulations set no minimum salary. It still has to be payable, and it should fit the role the petition describes. How profits, costs and intercompany services between parent and subsidiary are booked properly is part of the tax plan.

6The company at home has to keep running

The EB-1C is the green card for multinational managers. Under the regulation's definition, multinational means the company, its affiliate or its subsidiary does business in two or more countries, one of them the USA. That leads to a rule that often surprises owners of small businesses.

According to the Policy Manual, the US employer and at least one qualifying organization abroad must keep doing business until the immigrant visa is issued or status in the US is adjusted. If the company abroad stops operating entirely, for example because it closes along with all its affiliates or moves completely to the USA, the basis for the EB-1C is gone. The relationship between the companies must exist at filing and remain in place until the decision. If the company abroad is restructured before filing, a successor entity can take its place, provided it documents this.

So if you plan to sell or wind down your business back home, time it around the green card. Green card first, restructuring second: that order keeps the EB-1C basis intact to the very end.

7Family businesses: when relatives hold a stake

Small subsidiaries are often family owned. That is no obstacle for the EB-1C, but it can mean one more form. For employment-based green cards, 8 CFR 213a.2 requires an affidavit of support on Form I-864 if a relative who is a US citizen or permanent resident filed the petition or holds a significant ownership interest in the petitioning company. Under 8 CFR 213a.1, significant means at least 5 percent. Relatives include spouses, parents, children and siblings. Siblings only trigger the requirement if they are US citizens.

The relative then has to show they can provide support of at least 125 percent of the US poverty guidelines for their household. If, say, your brother with US citizenship owns 10 percent of the US subsidiary, this affidavit belongs in your plan. If no family member with US status holds shares, the question doesn't arise.

8The right order for founders of small subsidiaries

The rules point to a typical sequence for entrepreneurs building a small subsidiary themselves:

1. Form the US company as a subsidiary or sister company of your business at home, with clearly documented ownership.
2. Move to the USA on an L-1A; for a new office, the initial approval is for a maximum of one year. You need one year of employment as a manager or executive with the company abroad.
3. Use the first year to build real business and real staff: customers, revenue, employees or service providers, payroll, a tax return.
4. Extend the L-1A. The review after the first year doubles as the dress rehearsal for the EB-1C.
5. File the I-140 once the subsidiary has been doing business for a full year, the numbers support the salary and the job description fits the company.

A small company even has an edge on fees. If you employ no more than 25 full-time equivalents in the US, affiliates included, you pay an Asylum Program Fee of $300 instead of $600 on the I-140. All fees are in our guide to EB-1C costs. If the staffing question does come up during the case, the guide EB-1C denied or RFE shows where the typical sticking points are.

In short

• A small US company can support an EB-1C, a new one cannot: at filing, it must have been doing business regularly for at least one year.
• The petition is filed by a separate US company with a qualifying relationship to the company abroad. A branch office or sole proprietorship can't do it.
• USCIS doesn't just count heads; it checks whether enough people handle the day-to-day work, measured against reasonable needs and the company's stage of development.
• The US company must be able to pay your salary from the day of filing, backed by a tax return, annual report or audited financial statements.
• The company at home must keep doing business until the green card. Move it entirely to the USA and you lose the basis.

How we help you

• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Visa Roadmap for Company FormationFormation and visa in one plan, so the company carries the visa.
• Form a CorporationThe US corporation (Inc) for growth, investors and your visa.
• PayrollPayroll, payroll taxes and filings for your employees in the USA.
• Tax structureA clean structure between parent company and US subsidiary, or between you and your US company, coordinated with your accountant.
• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.