“CEO of Two” - SUCCESSFUL L-1A Extension

·         Nationality: Chinese

·         Adjudicated by: US Consulate

·         Industry: Rubber (Material Goods)

·         Company: Startup

·         Position: CEO

·         Case: L-1A Extension

·         Challenge:

o   Only 2 Employees in U.S. Office

o   Parent Company in China was state owned

o   Client just recently had his case denied

o   Client was no longer in the US and we had to work across time zones

o    

Mr. Wong* is a hardworking businessman who came to the US to establish an American subsidiary of a Chinese state-owned rubber and material goods company. He was operating in the US for nine months before he had to apply for a visa extension which, if granted, would allow him to stay for another two more years. In order to qualify for an L-1A extension, though, he would have to prove that he meets the requirement for an L-1A visa, meaning he would have to prove that he is either an executive or a higher-level manager (showing that he was not just involved in the mundane day-to-day operations of the business).

Through no fault of his own, the odds were heavily stacked against Mr. Wong’s chances of renewal. Between the stress of several employees quitting without warning and the hardships of adapting to an international market, his first year of operations in the US was not as fruitful or smooth as he had hoped. There was not much promising revenue data he could present as evidence that the company was thriving; it was difficult to make a definitive argument that his business in the US would eventually take off.

Furthermore: when Mr. Wong applied for his L-1A extension, he was operating out of a very small office with a staff of only two people (an office assistant and an account manager). Considering that the overall size of an applicant’s business is often one of the most crucial factors immigration officers account for in their L-1A decisions, it was going to be extremely difficult for Mr. Wong to demonstrate his value in an executive or managerial capacity with such a small workforce. In fact, many of Mr. Wong’s business colleagues and peers (most of who managed more successful, larger-scale operations than he did) warned him that even they had major difficulties getting their L-1A applications accepted.

Most importantly, however, was that his L-1A petition was recently denied. Frustrated and with his entire career and job on the line, he heard that Tsang & Associates had a reputation for solving complex cases and reached out to us as his last resort.

What made matters even more difficult was that the client already left the U.S. and our team had to work and interview his team across time zones and review all documents electronically.

Every minute our client spent away from his duties in the US was another minute of missed business opportunities for him, and so our team managed to assemble a comprehensive and compelling case for him in less than a month. Whereas most L-1A applications at our firm do not exceed five hundred pages, Mr. Wong’s unique circumstances warranted over eight hundred pages—not including the response to the request for evidence.

The team at Tsang & Associates did a thorough audit of his company operations and was able to prepare a convincing application showing the managerial and executive responsibilities of the applicant despite the weak data.

KEYS TO SUCCESS

Mr. Wong’s position leading a three-person office certainly did demand him to fill more than one role, which generated some confusion as to whether he actually was an executive or a manager eligible for this type of visa extension. We were able establish that the executive and managerial duties Mr. Wong was performing were not mutually exclusive by referencing previously affirmed case law and successful appeals of the same sort. In fact, we insisted that his combined responsibilities as both an executive and a manager of the company made him more than qualified for an L-1A extension.

The multi-faceted nature of Mr. Wong’s managerial functions also meant that he would occasionally get involved in the day-to-day operations of the business (doing work that is normally handled by lower level managers). To prove that he was not directly involved in most of the hands-on work, we laid out an intricate breakdown of the rather unconventional business model Mr. Wong’s operations were adhering to. Through an elaborate series of flowcharts, presentations, and thorough analyses, we explained that Mr. Wong had contracted three big companies to handle distribution of his products across three different regions of the US. Then, having drawn up a picture of the overall operation, we proceeded to provide insight upon all of the finer details: we explained every step of the production process, from how the rubber products are manufactured to how Mr. Wong is training his contractors to sell them. We conducted interviews with every employee, manager and contractor all the way up the chain of command, gathering information to be able to convey the structure of this company as clearly and efficiently as possible. We also received letters of recommendation from his Chinese affiliates and co-executives, irrefutably affirming him as the indispensable executive of their US subdivision.

While we had successfully clarified Mr. Wong’s position as the executive and head manager of his company, his shaky first year of operations still left room to doubt the viability of his business venture. Fortunately, the interpretations of immigration laws are meant to be flexible—as to accommodate every person’s unique legal situation—and so we were confident that by providing a glimpse into the company’s future, we could make the presiding officer reconsider our client’s L-1A eligibility. We collaborated with Mr. Wong to articulate his business plan for the next few years, to calculate his projected profits, and to define his expansion strategies now that his workforce had finally stabilized. All of this information compiled together painted a promising picture of the company’s trajectory—pending the approval of Mr. Wong’s visa renewal.

In the end, our relentless efforts were indeed enough to convince the immigrations officer to finally approve Mr. Wong’s L-1A extension. Against all odds, his previous denials were reversed—an almost unprecedented outcome for someone in his position. Mr. Wong was elated to be able to return to his US operations completely free of any legal burdens.

OUTCOME

Our client’s L-1A application was accepted and approved within two weeks of the request for evidence.

*Name has been changed to protect identity.

SUCCESSFUL L-1A REFILE CASE

·         Nationality: China

·         Adjudicated By: USCIS

·         Industry: High-tech start up and investments, venture capital

·         Company: Startup, established in 2016

·         Position: Managing Partner

·         Case: L-1A Refiling, after first filing was denied (No RFE Issued).

·         Challenge:

    • First L-1A filing had been denied only a few weeks prior

    • Company was involved in venture capital, a complicated business for a layperson.

    • Company had a complex ownership structure with a Chinese company owning a Delaware company, which owned a second Delaware company, which in turned owned the petitioning organization in San Francisco.

    • Company income was low, generally a typical of venture capital firms.

    • The Beneficiary had only worked at the Chinese parent company for barely more than one year.

Mr. Wu was feeling tremendous pressure. As a young professional with a bright future, he’d found himself stuck in a bureaucratic nightmare. He’d accepted an important promotion to a United States-based venture capital firm with accounts in the $500,000 to $2 million range awaiting his oversight. Yet, his L1-A visa status as an intra-company transferee was stalled and so, therefore were his projects. His new employer was unhappy about the delay, and Mr. Wu believed his career trajectory was in jeopardy. The process had already taken a year. Would it take another year to be resolved? The stress for Mr. Wu was building, and he was feeling discouraged. Fortunately, he was in the capable hands of Tsang & Associates.

An L-1A visa allows company executives and managers to transfer to the U.S. on a visa for up to 7 years. Each organization is unique, and thus it’s vital for the petitioning U.S. business entity to hire the right company to present specifically tailored evidence to support its particular L-1A petition. Mr. Wu’s case posed unique and specific challenges. The company had a complex ownership structure, their income was low (typical for venture capital firms) and complicating matters, Mr. Wu had only worked at the Chinese parent company for barely more than one year.

After preparing Mr. Wu’s case, Tsang & Associates felt confident the petition would be successful and filed his L-1A in February 2018. Two weeks later, the case received, what the firm believed to be, an unreasonable Request for Evidence (RFE). The RFE challenged Mr. Wu’s one continuous year of employment abroad, his professional duties at both the China office and proposed responsibilities in the U.S. This response occurred despite Tsang & Associates having submitted 54 exhibits giving detailed explanations for Mr. Wu’s role in China, proposed role in the United States, the relationship between the two companies, and a business plan with high potential.

Law firms cannot choose the officer who reviews any case submitted to the United States Citizenship and Immigration Services (USCIS), and therefore approval can fall victim to randomness and happenstance. However, hiring the right law firm dedicated to rapid response, sound logic, and a clear presentation can ultimately win a case, even if the first attempt is denied.

Tsang & Associates believed Mr. Wu’s case would ultimately be successful and immediately crafted a second petition at no additional cost. The firm aggressively responded to the RFE with an additional 25 new documents, including providing new company letters, new organizational charts, payroll and financial records, and investment contracts proving Mr. Wu’s duties and responsibilities in his capacity as Managing Partner of the Chinese parent company.

Tsang & Associates filed the second application in May 2018 and received an immediate approval in June 2018 with no request for evidence the second time. Mr. Wu expressed his extreme pleasure that he’d hired the right law firm. With our experience and detailed strategy, Tsang & Associates saved the day.

KEYS TO SUCCESS

Tsang & Associates felt very confident that Mr. Wu’s case had merely been unfortunate when it came under the purview of an extraordinarily inflexible and intransigent immigration officer. Our firm believed the atypical nature of venture capital may have been too complicated for the original officer to understand.

Therefore, to ensure that the new officer would know the complex nature of Mr. Wu’s business and job duties, Tsang & Associates wrote new drafts of the attorney brief and company letters. The documents were clear and detailed about what venture capital is and how it works, as well as the necessity of having an experienced manager and executive, like Mr. Wu, at the helm of the U.S. company.

Our extensive initial filing and RFE provided us with a wealth of documentation to prove the case, in terms of Mr. Wu’s proposed managerial and executive duties in the United States, managerial and executive responsibilities in China, one year of employment in the qualifying company abroad, and ownership relationship between the China office and the US office.

Finally, our firm included as the final exhibit the denial letter to emphasize all of the aspects of the case that the previous reviewing officer never touched upon, such as the company’s organizational structure. It was also crucial for demonstrating to the new reviewing officer that the prior denial was issued despite an extensive evidentiary record.

While the previous RFE did not challenge the company’s ownership structure, we nevertheless submitted more than a dozen documents describing and demonstrating its complex organization. In this case, the parent company owned a Delaware company that owned another Delaware company, which in turn held the petitioning organization. Furthermore, our response the RFE included an explanation of the consequences of denial, detailing that the company could only perform its business plan if it had an experienced manager and executive from China coordinating between the two companies.

 

Overall, our second submission would include a total of 85 exhibits. Typically, a successful L-1A petition would not likely include more than 50 exhibits and sometimes fewer than that. In this case, Tsang & Associates didn’t want to take any chances. Our submission was a conglomeration of all the previous exhibits submitted in the original filing and RFE response. The firm did not include anything new or additional, as we were very confident in our chances of success.

In the end, it took less than three weeks after the second filing for the entire case to be approved.

OUTCOME

Mr. Wu was extremely satisfied and honored our firm with a gift box and red envelope. He told us that he had always had total confidence in the expertise of Tsang & Associates. He is now happily working as the Managing Partner at the company’s prestigious office in San Francisco. Mr. Wu’s career trajectory is back on path thanks to the dedicated attorneys and staff at Tsang & Associates.

*Name has been changed to protect client identity.

Tagged: RFEL-1AVisa

 

SUCCESS STORY: EB-1A

·         Applicant: Financial Analyst

·         Nationality: China

·         Degree: Master’s in Software Engineering & Bachelor’s Degree in Computer Science

·         Profession: Financial Analysis

·         Prestigious Organization Memberships: 6

·         Publications: 2 monographs, and 7 scholarly articles on key topics and theories

·         Challenges

o   All contributions to his field were all in China

o   Difficult to prove he would be able to contribute to the U.S. based on his Chinese accounting background

o   We could not get letter of recommendations from his employers

o   We could not get letter of recommendations from U.S. scholars

EB-1A cases are always an enormous challenge and it takes a strong case without an ounce of doubt to achieve a successful outcome. Dr. Hao came to our firm seeking assistance for his case, filled with hesitation and concern that he would not qualify for EB-1A status. After receiving unsuccessful counseling from numerous immigration firms who advised he might only qualify for EB-2 status, Dr. Hao came to our firm from a referral to seek our expertise on his case after hearing our many success stories with similar immigration cases. While getting to know Dr. Hao on a deeper professional and personal level, we learned how extraordinary of an individual he is and we were able to customize his EB-1A petition with complete confidence in securing a win for our client.

KEYS TO SUCCESS

                When our team first heard Dr. Hao’s personal journey and the challenges facing his EB-1A case, we were instantly intrigued and assured Dr. Hao he was in the best care to take his case. At first glance it would have seemed that Dr. Hao had little support documentation, and combined with his professional background in the Chinese accounting field, it caused concern and doubt from Dr. Hao in his ability to win this case. Without proper documentation supporting Dr. Hao and extensive evidence, USCIS officers would have drawn the conclusion that he was simply an accounting professional with no extraordinary abilities and his petition for EB-1A would have likely been denied.

                Our team interviewed Dr. Hao extensively on a personal level and discovered that he had many professional contacts in China willing to submit letters of recommendations on his behalf. In order to highlight his strengths in the eyes of his peers, our EB-1 legal team interviewed Dr. Hao business associates and drafted the recommendation letters on their behalf in order to have them translated from Mandarin to English.

                Through our many one-on-one interviews with Dr. Hao, we learned of his extraordinary contributions to his field through his memberships in six organizations. Our team was able to produce evidence to support the prestigiousness of these organizations as well as Dr. Hao’s membership confirmation. Recommendation letters were drafted as evidentiary support establishing Dr. Hao’s outstanding professional accomplishments in his achievement to gain membership for these organizations.

                Dr. Hao’s professional accomplishments filled our team with complete confidence that he would win his case. Dr. Hao is a recognized expert in the field of financial analysis and with his extensive knowledge and experience in economics and finance, he was qualified to judge two national economic awards, which demonstrated his extraordinary contributions to his field of study. Our team was also able to gather substantial evidence through Dr. Hao’s published works, including his two original monographs and seven scholarly articles on key topics and theories in his field of financial analysis. His past business experience of leadership positions in major companies also demonstrated his extraordinary qualifications and supported his critical role to his field.

OUTCOME

                After compiling a substantial amount of evidence on Dr. Hao’s behalf, our team’s assurance in his qualifications resulted in a rare successful approval on the first attempt of his EB-1A petition. Dr. Hao was elated and overjoyed that he had put his trust in our team’s confidence to prove his case. Because our team saw beyond challenges and took the time to get to know Dr. Hao on a more personal level, we were able to prove his extraordinary abilities without an ounce of doubt and without any requests for additional evidence. Dr. Hao is now happily living and working in the United States as an alien of extraordinary ability and continues to achieve professional success in the financial field.

SUCCESSFUL UNLAWFUL PRESENCE WAIVER CASE

·         Client: Ms. Huang

·         Applying for: I-601A Provisional Unlawful Presence Waiver

·         Nationality: Chinese

·         Marriage: Naturalized US Citizen husband

·         Number of Children: US citizen step daughter

·         Challenges:

o    Ms. Huang’s immigrant visa had been denied after two separate interviews at the US Consulate in Guangzhou, China.

o    The denial was erroneously issued because Ms. Huang had been the victim of fraud.

o    The interviewing officer wrongly assumed that Ms. Huang was responsible for committing fraud.

o    We had to explain that she was the victim of fraud, not the perpetrator of it.

Ms. Huang* came to Tsang and Associates strongly needing assistance in obtaining an I-601A Provisional Unlawful Presence Waiver. Without it, Ms. Huang would suffer tremendous losses of opportunity in the United States and would lose eligibility to come to the United States and leaving behind her U.S. citizen husband and step daughter. In this case, on June 29, 2011, the U.S. Consulate in Guangzhou denied Ms. Huang’s application for an immigrant visa.  Ms. Huang was first interviewed in April 2011 and appeared for a second interview in June 2011. The interviewing officer found Ms. Huang to be ineligible due to fraud/misrepresentation on the basis that Ms. Huang’s husband had found a joint sponsor for Ms. Huang through a newspaper advertisement. The officer deemed the advertisement by the potential joint sponsor to be fraudulent. Distressed, Ms. Huang sought our help in her waiver application that was previously denied. After sitting down with her and her family during a strategy session, we were able to compile evidence and submit the application on March 12, 2012 which was subsequently approved in early 2013.

KEYS TO SUCCESS

Victim of Fraud:

When Ms. Huang first came to us and explained her situation, we were confident that we could prove that should Ms. Huang be denied a waiver and face deportation, very dire consequences would occur. First, we needed to explain the fraud issue and how Ms. Huang and her family were not at fault, but rather were themselves the victims of fraud.

We were able to demonstrate that Ms. Huang was a victim of an unscrupulous individual who provided false information to Applicant and her husband in an effort to receive compensation for his services. Applicant and her husband naively “bought into” this individual’s false statements, and neither Applicant or her spouse had any knowledge that Mr. Chan had previously sponsored other applicants or had submitted any documentation that may have proved to be false or inaccurate.  Applicant simply fulfilled the joint sponsorship requirement through a paid service, which does not in itself render Applicant inadmissible. We were able to demonstrate this by assisting our client and her husband in the writing of personal affidavits. We were further able to help our client secure a new joint sponsor, by asking the petitioner’s husband’s coworker and wife. We also helped them prepare their documents.

We also presented the law in detail so as to demonstrate the interviewing officer’s errors. Prior law pertaining to the Affidavit of Support considered sponsorship to be a moral obligation that necessitated the affiant to be a family or friend.  However, the law currently defines sponsorship as simply a contractual obligation, which can be fulfilled by any affiant who is not necessarily a family member or a close friend. Since an affidavit of support does not require the potential joint sponsor to be a friend or to be related, as long as the affiant did not submit fraudulent documentation to include tax returns, employment letters, and earning statements, it is not material if the sponsor is found to consist of or be part of a paid service.

The sponsor must be a U.S. citizen or permanent resident and must have sufficient income to support not only his or her own family but also the immigrant and the immigrant’s accompanying family.  Most applicants who apply for U.S. permanent residence ("green card") status need a sponsor who is willing to sign an Affidavit of Support on their behalf. Often the sponsor is a close family member, or a spouse (who may have some legal obligation for support in any event). However, a joint sponsor may be any party who fulfills the legal requirements noted above.

Extreme Hardship:

According to USCIS regulation, the waiver would only be approved if we were able to show that extreme hardship would occur subsequent to the denial. Although extreme hardship is not explicitly defined by USCIS, some factors of interest include the presence of a lawful permanent resident or U.S. citizen spouse or parent in this country, the qualifying relative’s family ties outside the U.S., the conditions in the country or countries to which the qualifying relative would relocate and the extend of the qualifying relative’s ties in such countries, the financial impact of departure from this country, and significant conditions of health.

We showed that should Ms. Huang’s petition not be approved, her marriage with Mr. Yu would result in dissolution. We wrote in the affidavits that we drafted for them that Mr. Yu and Ms. Huang had talked about this devastating possibility since the June 2011 denial, and the only available choice for this particular family would result in the dissolution of the marriage.  Mr. Yu would likely not be able to return to China, because he would probably be unable to meet the requirements for citizenship in China, due to having abandoned his Chinese citizenship and having received U.S. citizenship through a prior application for asylum. According to Chinese law on this matter, foreign nationals who once held Chinese nationality may apply for restoration of Chinese nationality, but they must have a legitimate reason for their request and they shall not retain foreign nationality. In this scenario, we were able to show that Mr. Yu would likely not be deemed to have a “legitimate” reason for his request, as he left China on the basis of an application for asylum – a condition that would not yield any leniency or goodwill from the Government of China. Further, he would suffer the most grievous hardship of all – having to renounce his U.S. citizenship.

We also demonstrated that Mr. Yu’s daughter would be forced to abandon her lawful permanent resident status and leave the United States if the waiver is not granted. The daughter was an aspiring dancer, who was seeking to further her career in the United States. She had no financial capability to sustain herself in the United States, and if Mr. Yu were forced to return to China she would have to forfeit her schooling, and her dreams in the United States. In the event that Mr. Yu would be forced to quit his job, and halt his earning capacity, he would have been left with no other option but to stop funding and contributing to his daughter’s education, living expenses, and dreams.  Further, even if he were not to return to China, the depression of Mr. Yu’s daughter caused from being torn away from her mother would be exacerbated with the subsequent divorce between her two parents.  Any leftover income that would have been set aside for assisting his daughter would need to be used for attempting to meet Applicant’s spouse in China (if possible) or in a 3rd country, using up all of their minimal disposable income.

Thus, we established that every consequence of Ms. Huang’s potential departure from the United States would bring about significant and extreme hardship to both her immediate family and extended family as well. We proved that it would result in devastating problems and bring about emotional pains and financial suffering for her family. Ultimately, we proved that the social, financial, and familial ties for Ms. Huang were simply too strong to break apart; if they were broken, extreme hardship for the family members would be sure to occur.

 

OUTCOME

We filed the petition in March 2012 and was approved in June 2012 without any request for evidence. Our client was extremely grateful as she could continue living a blessed and joyful life with her family.

*Name has been changed to protect client identity.

 SUCCESSFUL RE-ENTRY CASE

 

·         Nationality: Zimbabwean

·         Adjudicated By: CBP

·         Case: Extended Stay, Re-Entry

·         Challenges:

o   Client was out of the U.S. for two years

o   Permanent Residence Status

o   Minimal home times to the U.S.

 

The haunting tremor in Alexa’s voice indicated more than a caller in distress. Tsang & Associates had encountered a terrified woman on the line. The Zimbabwe native had gained U.S Legal Permanent Resident (LPR) status and had been enjoying the equivalent of the American dream alongside her husband: Shared ownership of a home in a tony enclave of Denver, Colorado, as well as owners of a home flooring business built with their mutual sweat equity. Life had rarely been better---until it took a fateful turn on her mother’s health back on the African continent.

 

Alexa returned to Zimbabwe in December 2016 to celebrate the coming new year with her mother. Unfortunately, her mother became ill and bedridden during her visit. She admirably assisted in nursing her parent back to sustainable health. In the process, Alexa, herself, became seriously ill and subsequently was unable to return to the U.S. within the six-month absence limit of her LPR. Having overstayed her visit due to forces beyond her control, Alexa’s right to re-enter the U.S. had been critically jeopardized according to the U.S. Embassy in Zimbabwe, which declined her re-entry application. Petrified by the prospect of having to forfeit the hard-earned life she’d cultivated with her husband in America, Alexa was desperate for a lifeline.

She found it in Tsang & Associates.

Upon thoroughly reviewing Alexa’s case---the merits of her selfless compassion in overstaying her visa to take care of her sick mother, as well as the family and business ties she was eager to return to in the U.S. were obvious---the law firm promptly contacted U.S. Customs and Border Protection (CBP) on her behalf and pleaded her right to re-enter and rejoin her awaiting family and business in America. Alexa was granted re-entry, and the United States has welcomed back a resident who continues to show her appreciation to the country via shared entrepreneurship and a strong family foundation alongside her husband.

Her life, and that of her family, now restored, Alexa is home again.

 

***client name has been modified to protect identity***

 SUCCESSFUL O-1 SELF PETITION REENTRY CASE

·         Applicants: Ms. Qi and Mr. Shang

·         Nationality: Chinese

·         Business: Digital Media and Online Consulting Firm

·         Ages: Mid-twenties

·         Challenges:

o   Both applicants had their O-1 visa revoked by CBP officer and had to urgently apply for a new visa in order to return to the United States

o   The client’s previous attorney went on vacation and could not be reached.

o   We were retained to urgently to prepare a refiling of O-1 visa at the consulate showing that the CBP officer was incorrect in their determination to cancel the visa. 

o   Applicant’s self petition business did not have any employees and their own salary were not high

Ms. Qi and Mr. Shang, a couple in their mid-twenties, went on a brief trip to Canada to visit their family but unfortunately, the couple was denied reentry by a U.S. Customs and Border Protection officer. The couple was questioned for several hours regarding their qualifications for the O-1 visa: what they did before they got the visa, what they were doing in the U.S., their employer, their education, but then ultimately denied them because the officer deemed them not qualified for the O-1 visa. The clients were furious and frightened. They needed to return to the U.S. as they had classes to teach and clients to serve. They could not find their prior attorney and everyone they spoke with advise them to return to China and to apply for another visa, but they could not afford to do that as it would likely take a minimum of 6 months before they could enter the U.S. That is when they turned to Tsang and Associates PLC.  

Background

When the applicants called the attorney at Tsang & Associates asked for a transcript of their preceding. In reviewing the notes, the CBP officer denied the O-1 visa because the officer had a misunderstanding regarding O-1 self-petition applicants and the Automatic Revalidation guidelines and deemed them not qualified. It did not help that the clients did not fully understand the guidelines either and the facts were not pretty. The applicants ran a small business with no employees other than the two of them. The company did not make a profit the last year and their salary was not high. Purely on the bases of the facts, the officer had a hard time believing that the applicants were “extraordinary”.

After seeing the facts, our attorneys immediately suggested that the applicants schedule an immediate urgent interview in Canada where they were. This was because it would be much faster securing an interview there compared to China and they would not have to make a costly cross pacific return flight.

Then, while the clients waited for the second interview, our attorney crafted a simple heartfelt letter to the consulate, explaining the qualifications of the applicant and kindly requested the reinstatement of the O-1 visa for the applicants.

Keys to Success

Tsang and Associates firmly established in their attorney briefing, and supported it with relevant documents, that the couple had always been completely open and honest with the Department of Homeland Security and the Department of State throughout the application process and maintenance of their O-1 Visa status. The attorneys argued that the original 0-1 petitions were approved by the USCIS (United States Citizenship and Immigration Services) on the basis that complete documents were submitted, and that USCBP had approved their reentry to the country under O-1 Visa status on numerous occasions. In this case, the only thing that had been different was the officer involved in this particular instance. By presenting the couple’s previous documents, we were able to explain and highlight the main point. We were further able to demonstrate by showing information from the couple’s original petitions that they were, indeed, aliens of extraordinary ability by highlighting their past accomplishments and extensive coverage of their artwork in the media. 

Furthermore, by providing other documents and drafting affidavits, our attorneys were able to demonstrate that the denial of the couple’s visas would create dire consequences not only for themselves and their business, but also for their business’ clients and employers.  We demonstrated that the permanent loss of their visa status would cause dire consequences for the couple’s business and others as well, further establishing the need to reinstate their visa. 

Lastly, we also successfully and persuasively argued that the couple qualified for reentry to the United States on the basis of Automatic Revalidation. We showed that under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the United States may be admitted at a U.S. port-of-entry by CBP under the condition that they meet two criteria: First, the visitors must be nonimmigrants who departed the United States for a brief travel to Canada, Mexico, or an adjacent island, for thirty days or less. Second, the nonimmigrants must have a valid and unexpired admission stamp or paper Form I-94 endorsed by the Department of Homeland Security. We were able to demonstrate that the couple left the United States only for a day and traveled as far as Canada to spend a day with family.

OUTCOME

The couple came to our office on in 2017 and we were able to secure a successful reentry for them five days later. When they saw the approval the couple was overjoyed.

A SUCCESSFUL L-1A CASE

·         Nationality: Chinese

·         Adjudicated By: USCIS

·         Industry: Aluminum wheels and textiles imports

·         Company: Startup, established in 2016

·         Position: President

·         Case: L-1A Extension

·         Challenges:

    • Company had negative profit

    • Company had fewer than 8 employees

    • Many of the employees were only recently hired

    • Some of the employees did not have bachelor degree

    • Business plan had drastically changed compared to the original filing

    • The applicant’s salary was limited to under $80,000

A textbook example of how we converted a dilemma to a solution is the case of Mr. Ni.* He was the president of a Chinese firm with one division that manufactured aluminum wheels; and another that manufactured textile baby products. He was the “heart and soul” of his company, which had established a subsidiary in the U.S. He transferred to that hub of the firm in 2016; Tsang and Associates filed an I-129 L-1A (nonimmigrant work visa) extension for him in 2018.

However, after a year of starting up his business the company did not grow as expected. Because of the low number of employees and profits, the company faced the very real possibility of having the L-1A visa denied and the owner and operator would be forced to leave the U.S. and shut down the business.

Luckily, the client was our own and we had an early start in preparing for this difficult application.

overcoming the obstacles

There were two challenges confronting us (1) Mr. Ni’s company lost approximately $300,000 in 2017 and many of the staffs were only recently hired, (2) because of the delayed start in actual operation there were very few documents to show the size and scale of an international operation that require an executive or manager.

Our team, however, was accustomed to such legal hurdles, and formulated a strategy that we were confident would prevail for our client.

First, we had the advantage that Mr. Ni’s company had experienced recent profits, and we could show the immigration officer the large demand for its main product, aluminum wheels. We were able to demonstrate with a powerful and extensive new business plan showing that the company was on the path of a major breakthrough and that an additional two years L-1A visa would give birth to another great company for the U.S. These were in high demand by U.S. consumers, and we could forecast future revenue based upon this demand.

The next challenge we addressed was the shortage of documentation indicating the integral role Mr. Ni played as a manager and executive for the company. Our solution:  We defined his position within the company through inter-company memos, email, flowcharts and PowerPoint presentations. In addition, our team evaluated the relationship of each employee to the firm in order to illustrate a practical, working view of the way our client managed personnel.

We broke down the duties and responsibilities of each employee and crafted detailed statements for each employee regarding their work schedule and goals. This was critical as every employee in a startup had multiple responsibilities and they often overlap and change—sometimes multiple times within a day.

We compared the company to many of the great startup companies in our nation and showed the similarities between their startup phases.

One key reason for the success of a very difficult extension was clearly demonstrating of the benefit the U.S. will receive once the company succeeds and the great opportunity lost if the case was denied.

OUTCOME

As a result of our team’s efforts in researching the “nuts and bolts” that made up our client’s company, as well as communicating with everyone within it, Tsang and Associates was able to establish the worth Mr. Ni had to his corporation – and to his new country. His L-1A application was accepted and approved within one week of filing.

*Name has been changed to protect client identity.

Tagged: RFEL-1AVisa

 

 

SUCCESSFUL P1A & P1S Visa: FiGURE SKATER

 

o    Applicant: Amanda & Kristine

o    Nationality: Hong Kong  

o    Visa: P1A and P1S

o    Sport: Figure Skating

o    Challenges:

-Amanda’s mom, Kristine, wasn’t her trainer, coach, or agent, usually required for P1S visa.

            -They were on tight schedules with Amanda’s competitions

            -They had no connections or ties to the U.S.

            -They didn’t have letters from an agency to prove Amanda was renowned

   -Time was very limited. Needed to obtain visa in 3 months or else Amanda would miss her competition

-Amanda was warned that she can no longer come to the U.S. on a tourist visa because of her frequent visits and competitions.

 

Young Hong Kong resident Amanda Yang had a passion for figure skating. Amanda turned this passion into a successful competitive career that was supported and facilitated by her mother, Kristine. Amanda’s mom took care of all the necessities of being a successful competitive skater that don’t involve putting on a pair of skates and stepping on ice. Entering competitions, booking travel, booking accommodations, scheduling practices, Kristine did it all. As a result of their success, Amanda and Kristine found themselves frequently visiting one of the most competitive countries in the world for sports of almost any kind: the United States.

 

However, what initially was a sign of success became a source of trouble when a U.S. Customs and Border Protection officer warned them that their frequent travel without a visa made them suspicious in the eyes of U.S. immigration officials. This was an alarming development as Amanda had a major skating competition coming up in just a few months. As she always did, Kristine jumped in to figure out how to rectify the situation. Many attorneys she contacted suggested Amanda obtain a F-1 U.S. student visa, under which Kristine could be registered as an F-2 dependent. This didn’t satisfy them, as Amanda had no interest in being a student again. Skating was Amanda’s passion and that is to what she intended to dedicate herself.

 

Just when they were giving up hope, they were referred to Tsang and Associates by a fellow performer whom we assisted in a similar case and they quickly flew to the U.S. to meet with our team. It was unquestionable that the best alternative was to apply for a P-1A and P-1S visa for them as the child was an international athlete and the mother was her agent.

 

Keys to Success:

The requirements necessary to obtain a P-1A visa status from the United States Citizenship and Immigration Services are as follow:

·         Applicant must be coming to the United States to participate in a specific event, competition, or performance.

 

·         An explanation and itinerary of the event.

 

·         Two documents that show the applicant has high achievements and is renown in their field in more than one country.

·         A copy of a contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport.

·         An I-129 form and supporting documentation filed by a prospective employer establishing intent to work.

·         The U.S. employer must submit a consultation from an appropriate labor organization. The consultation must describe the work or services to be performed in the United States and the applicant’s qualifications for such work. If no appropriate labor organization exists, this requirement is excused.

 

 

High Level of Achievement, Skill, and World Renown

Our first obstacle to tackle was compiling evidentiary documents that would establish Amanda’s high skill and achievement as a professional skater. After extensive research and communication with various skating organizations, we were able to obtain an endorsement for Amanda from the Professional Skaters Association, the largest figure skating coaches association in the world.

In concert with this accomplishment we needed to establish that Kristine was essential and relevant support to Amanda in order for her to qualify for the P-1S visa status that would allow Kristine to chaperone her trips. This was a more complicated task as the P-1S is primarily reserved for a trainer, coach or agent in some contractual form. We circumvented this issue by submitting documents that established that Kristine was involved in all facets of Amanda’s career from her training schedule to playing the role of agent when it came to entering her in competitions.

 

Consultation from Labor Organization

Finally, although Amanda had no ties to the U.S., we were able to secure her a consultation with a labor organization that helped establish that connection. Having worked diligently many hours, Tsang and Associates filed the case in October 2016 and was able to the gain approval for Amanda and Kristine’s visas by January 2017, right in time for her tournament and a new year of competition.

 

OUTCOME

Having gained visas allowing them three years to come and go freely, mother and daughter were elated to be able to pursue Amanda’s skating dreams without the worry of immigration issues. They came into us discouraged about their prospect for success in rectifying their immigration status, but we believed in our clients and our capacity to navigate the law for them and opened the door to the American dream. They were thrilled.

 

SUCCESSFUL E-2 CASE

·         Client: Mrs. Zheng Zheng

·         Applying for: E-2 Visa

·         Nationality: Taiwanese

·         Challenges:

·         E-2 change of status to F-1

·         Difficulty to prove non-immigrant intent with U.S. citizen children

·         Difficult to prove intent to study after owning a company

·         Difficult to prove sound finances to support their living and tuition after company closed down

 

Few people have experienced the conflict of choosing between one’s parents and children, but for Mrs. Zheng Zheng, that conflict was a stark reality. After her E-2 investment in a restraint failed she had to choose between staying the United States with her U.S. citizen children or go back to Taiwan to take care of her parents. If she chose to stay in the U.S. there was a high likelihood she would never be able to leave and come back. If she chose to go to Taiwan there was also a high likelihood they would not be able to come back.

 

With the help of Tsang & Associates, PLC they were able to make the courageous move to apply for a F-1 visa overseas taking on the huge risk that they may never enter the U.S. again to see their children—and their reward was an approval. Now they are able to free to travel to see their parents in Taiwan and also to take care of their children in the U.S.

 

BACKGROUND

 

After coming to California from Taiwan on an E-2 visa, the applicant invested nearly $200,000 in a small restaurant. However, within a year, Mrs. Zheng Zheng’s restaurant fell upon hard times and went out of business, with Mrs. Zheng Zheng being forced to sell her restaurant for $70,000 - less than half of what she paid for it.

However, that wasn’t the greatest obstacle she was facing. With the closure of her restaurant, Mrs. Zheng Zheng was left with a decision: stay in California and never go home again, or return to Taiwan permanently and never return to the United States. What would be an easy decision for some was infinitely more difficult for Mrs. Zheng Zheng. If she were to stay in the United States, not only would she be doing so illegally or applying for a change of status to a F-1 visa. In either case, most people who chose to do change of status end up not being able to leave the U.S. because they will not be granted a visa to enter the U.S. in the future. And if they chose this path they would not be unable to return to her home in Taiwan to care for their aging parents. However, if she chose to return to Taiwan, it was highly unlikely that someone with her background would be able to secure a regular F-1 visa to come to the U.S. to study. It would mean having to leave behind her two children, who were U.S. citizens, alone in the U.S. Feeling as though she was being pulled in opposite directions, Mrs. Zheng Zheng came to Tsang & Associates, for guidance.

 

It was a hard choice given the consequences she was facing, but the attorneys at Tsang & Associates believed that we were able to help Mrs. Zheng Zheng secure a F-1 visa in Taiwan—as hard as it may have been.

The attorneys advised on all contingency plans in case the visa were not approved but then prepared a strong package showing why she qualified for an F-1 visa.

 

KEY TO SUCCESS

We believed that a significant reason as to why her restaurant went out of business was due to her lack of English skills. We assisted her in being accepted to a 4-year intensive English program at a very reputable school in Santa Monica. We demonstrated the strong financials that they had that supported their schooling and life in the U.S. and that they did not have immigrant intent. We prepared the clients for weeks before the interview and practiced for many hours as their entire future depended on every word.

A few weeks before the beginning of her first semester, Mrs. Zheng Zheng was notified that she no longer had to make the difficult choice between her parents and her children: her application had been accepted, and she had been granted an F-1 visa to attend the college program. Relieved and elated, the Zheng Zhengs returned to California to care for their children, and Mrs. Zheng Zheng embarked on a new journey as an English student, while also being able to properly care for her children and parents.

 

OUTCOME

The clients were overjoyed and we were also relieved and thankful to be apart of another successful journey. Well done, team. 

SUCCESSFUL EB-1A

 

●     Petitioner: Mr. Yang Wu

●     Applying for: Classification as an Alien of Extraordinary Ability (Eb-1A)

●     Profession: Acrobat and Circus Performer

●     Nationality: Chinese (Republic of China)

●     Challenges:

○     Mr. Wu works in a field with little permanent evidence of his achievements

○     Mr. Wu studies a 2,000-year-old performance art that Tsang and Associates will need to prove that Mr. Wu has changed in a meaningful way

○     Previous denials from other attorneys

○     Mr. Wu cannot reach out to colleagues in China for letters of recommendation or photographic evidence because they do not want him to leave

 

Yang Wu can lift a man on a ladder into the air with one hand. He can balance a pole on the ground while climbing it without use of his legs. He can swing from the highest trapeze, flip through the air and catch another rope with a single leap. Yang Wu knows the feeling of flying through the air with nothing but the ground beneath him, but he was never truly free. His expertise as an acrobat and circus performer had brought him around the world, entertaining thousands. His wife had followed him through the constant traveling so Yang would be able to raise his first-born son on the road. But they had a second child on the way, and despite his job with the Cole Bros. Circus in the US, Yang and his family were forced to frequently return to his homeland of China. The constant traveling on the road and back to the homeland had become too much for his young family to take. Yang and his wife decided they wanted to raise their family in the United States.

 

Unfortunately for Mr. Wu, the People’s Republic of China viewed him as a possession of the government. His acrobatic schooling was government funded and his art-style is an ancient and highly-regarded national treasure. Worse yet, were Yang to apply for a visa, his Chinese colleagues would not endorse him nor would they provide letters of recommendation. Yang had won many awards and received many accolades, but proof of these feats were few and far between. Without the help of his Chinese colleagues and teachers, it seemed impossible for him to prove his expertise. The other law firms Yang had went to for counsel had told him there was no chance of him becoming a US resident but when he went to Tsang and Associates, they believed he had a chance, small though it may be, to file for a Petition for Classification as an Alien of Extraordinary Ability under INA 203 (B) (1).

 

KEYS TO SUCCESS

At age 20, Mr. Wu had already achieved an accomplished career of acrobatic achievements and performances. He had been in specialty schools since he was four years old and had won his first award for his “Through Tubs” feat at the age of eight at the Henan Acrobatics Competition. By age thirteen, Yang had made an impression in the acrobatic community when he performed the “Balance Pipes” routine with five pipes instead of the usual three. At age fourteen, he had won the prestigious title of “The Golden Lion” performing “Lions Playing/Lion Dance”. Unfortunately, the evidence for these feats were hard to come by. Not only did they have to prove his expertise, but they had to prove that Mr. Wu had made a lasting and influential impression on the 2,000 year old ancient art of Chinese Acrobatic Performance. Through Tsang and Associates diligent research, they were able to find information on many of the competitions Mr. Wu had participated in and troupes he was assembled in. With this information, Tsang and Associates highlighted the many achievements of all those involved with the competitions and troupes, proving that Mr. Wu was a world class acrobat of the highest stature.

 

HOW WE PROVED THAT MR. WU HAD EXTRAORDINARY ABILITY

Acrobats don’t have the highly prestigious and individualized awards and attention that other artists do. A review written for a film may include quotes about each actor, the director, writer or others involved, but with circus performance, the ensemble is usually treated as a unit in their reviews. Yang referred to himself as “one of the crew”, never one to stand in the spot light but someone integral to the team. So Tsang and Associates treated Mr. Wu’s performance troupes as a unit representing the potential and caliber of Mr. Wu’s abilities. While Mr. Wu may not have been the individual who performed during a scene in a movie, his troupe did and Mr. Wu was a valued and necessary member of that team even if he wasn’t always the featured performer.

Even though much of Mr. Wu’s career was in the People’s Republic of China, he had performed all around the US, in Italy, Algeria and Japan. Reaching out to his American colleagues, they gave Yang Wu glowing letters of recommendation that helped firmly establish Mr. Wu’s influence on the ancient art form of Chinese Acrobatic Performance. His colleagues argued that Yang Wu added a new level of theatrical flair never before seen in his field (which was supported by his achievement of winning ‘The Golden Lion’ so many years before). Theatrical flair is a concept that’s very difficult to pinpoint but incredibly crucial to a field of entertainment that’s dwindling in popularity.

Lastly, Tsang and Associates argued that in the US, there is a dearth of acrobatic schools and performance; it is indeed an art form that does not thrive like it once did in the 21st century. While in China, his type of acrobatic performance is popular and well-regarded, but in the US, it is mostly unknown, with very few who understand it fully or teach it. Having Mr. Wu in the US could lead to generations of growth in this field because of his mastery of the art form.

OUTCOME

Despite his strength and balance, his skill and superior ability, Yang Wu didn’t understand paperwork or legalese. He simply doesn’t have the ability or time to wrap his brain around the complicated landscape of the American immigration system. Thankfully, Tsang and Associates does and because of them, Mr. Wu was approved for his visa. Mr. Wu and his family still live in the United States to this day and Mr. Wu travels the country with the Cole Bros. Circus. Mr. Wu may have swung from the high trapeze, soaring over the roaring crowd, but never before had he been truly free until now.

 

 

 

Successful Green Card Renewal Case

·         Client: Mr. Rhine Heart

·         Applying for: Reentry to the U.S. as Permanent Resident

·         Nationality: German

·         Challenges:

o   Mr. Heart’s Permanent resident card had expired

o   Mr. Heart has been recorded that he has been out of the U.S. for over 10 years

o   Mr. Heart has very little ties to the United States

o   Mr. Heart only spent a few weeks per year in U.S. and this has been noted by the CBP at the airport

o   Mr. Heart needed to prove he had not abandoned residency when he enters with his expired green card or else he would have been deemed to have abandoned it.

Background

Ten years ago, Rhine Heart’s dream of owning a bakery in America suddenly came closer to reality when he learned he was the winner of one of the toughest lotteries in the world, the green card lottery. Every year, millions of prospective immigrants apply to the Diversity Immigrant Visa program, (aka the green card lottery) hoping to be part of a small group of lucky individuals granted permanent residency in the United States. In May of 2008, those fortunate few included Rhine, and soon after receiving his visa he took up residency in Long Beach, California. However, Rhine still needed to complete his education in Germany, and as a result, he would spend most of the year outside of the U.S.

Under U.S. immigration law, a permanent resident who spends more than six months outside of the United States is presumed to have abandoned their residency. The last time that Rhine returned to the U.S., he was warned that the government assumed he had abandoned his residence because he has been out of the country for over 10 years, and he would not be able to return again without proof that he was still intending to reside in America. To make matters worse, Rhine’s green card expired this year, meaning he did not have a legal document to allow him to go on the airplane. All at once, Rhine’s hopes for the future began to crumble. If he lost his green card, that would spell the end of his life here in America. Although he really didn’t establish roots in the U.S. he honestly had been trying for the past 10 years and now when he is finally ready the U.S. looks as if it will take his permanent residency away. He would almost certainly never win another green card lottery, since the odds of winning the green card lottery even once are next to zero, let alone twice. Desperate and unsure of how to proceed, he turned to Tsang & Associates for help, contacting us from Germany.

Our Approach

Working with Rhine over Skype, we consulted him on the best course of action to take for proving that he did not abandon the U.S. First, we presented a detailed account of his activities over the last ten years, showing evidence that he had spent that time earning multiple degrees that would aid him in his business endeavors in America. We also obtained letters from various business investors who affirmed they were investing in Derek’s company, thus verifying that he intended to open a bakery in California.

But our work didn’t end there. As Rhine was preparing to board his flight to California, he was detained at the airport and prevented from boarding because his visa had expired. As soon as we were informed of the situation, our team rushed to his aid and contacted the Supervisory CBP Officer at LAX directly. We argued that Rhine qualified for an exception provided for in the U.S. Customs and Border Protection Carrier Information Guide that would allow him to enter the United States even with an expired visa. Finally, after hours of questioning, the officers let him board, and Rhine arrived safely in Los Angeles, where our team was waiting for him.

Outcome

Once Rhine arrived at our office, we worked quickly and tirelessly to secure for him a renewed Green Card as well as a re-entry permit that would allow him to travel back and forth between the U.S. and Germany. After we successfully demonstrated that Rhine still intended to live and work in the U.S. and never abandoned his residency, both permits were granted. Today, Rhine and his family happily reside in Long Beach, California, where he continues to pursue his lifelong dream with full peace of mind.

 SUCCESSFUL H-1B RFE CASE

·         Year: 2017

·         Nationality: Spain

·         Adjudicated By: USICS

·         Industry: Engineering

·         Company: Mechanical Engineering Company

·         Position: Engineer

·         Case: H-1B Petition

·         Challenge:

    • USCIS challenging the Wage Level I of H-1B applicants

Strong legal advice and an impeccable command of the law can be the difference between H-1B approval and denial.  However, even with the strongest, most experienced, and most dedicated team, challenges can arise because of the political environment. The inauguration of the Trump Administration brought with it new challenges to once routine immigration cases.  Mr. Sombra was hired by a major southern California engineering company after completing his Engineering Master’s degree at a prestigious southern California university. However, the Trump administration had issued new forms of Requests for Evidence or RFE’s (a challenge to the petition seeking additional documentation). We had handled their H-1B petitions on dozens of occasions, rarely receiving RFE responses. Following Trump Administration policy changes, many immigration firms were finding that routine H-1B cases were being denied.

More specifically, the RFE posed the following challenges:

·         That the position was Wage Level I, and therefore the position was far too simple to correspond with the complex job duties of the position.

The beneficiary’s new position had been designated as “Wage Level I” in the original H-1B filing. All H-1B petitions must select one of four Wage Level positions, from I (at the lowest) to IV (at the highest). Immigration Officer reviewing the case argued that Wage Level I positions only hold a basic understanding of the occupation and only perform routine tasks, and only perform routine judgement, and thus the job duties described “do not correspond to the Level I wage description”. However, as a specialty occupation, it was critical to establish that Mr. Sombra’s job duties were inherently specialized and complex even though it was only Wage Level 1 position.

Further, following Trump Administration policy changes, many immigration firms were finding that routine H-1B cases were being denied. This situation presented a unique kind of challenge, as there was no precedent available to guide our RFE strategy. Our firm was nevertheless determined to beat the odds, and we handled this case carefully and comprehensively.

KEYS TO SUCCESS

In order to respond to the RFE, Tsang & Associates felt that it was critical to make an appeal to common sense arguments and make a comprehensive response. This first included the need to establish that what was typical of entry-level engineers in the field and that such a position was inherently complex and specialized. Second, we had to demonstrate that a complex position like engineer would still be available as an entry level, “Wage Level I position”.

We were able to demonstrate this first by discussing what it is that mechanical engineers do and how the position is inherently complex. Under any circumstances, even the most rudimentary job duties of an engineer require extensive education in performing complex job duties, so a Wage Level I designation was not contradiction at all. Next, we demonstrated that the company in question had a need for overseas talent to make up for a massively high demand for engineers in the US. Next, we very carefully documented and explained how the four wage levels correspond to the job duties at each level at the company for engineers. This also entailed explaining in detail how the Mr. Sombra was to perform job duties that fit into the Level I wage. For example, we stated that like all Level I wage engineers, Mr. Sombra, hold less than five years’ experience and that all new hires fresh out of graduate school must necessarily fit into the Level I wage. Since Mr. Sombra met these criteria, he was unambiguously categorized under the wage I category. To strengthen the argument, we wrote in detail about how the company categorizes the Wage Levels II through and how Mr. Sombra did not meet the standards for experience and managerial responsibilities for those wage levels.

Just as importantly, it was critical to keep track of the bigger picture. The RFE only challenged the complexity of the position in relation to the starting wage. However, H-1B classification entails meeting just one of four categories and job complexity and specialization was only one of the four. We made clear that Mr. Sombra classified for H-1B status under all four categories. In other words, even if the Officer was correct in challenging the complexity of job duties by way of entry-level wages, it was irrelevant as he qualified under the other three criteria. Specifically, we argued the following:

·         A bachelor’s degree or higher or its equivalent is normally the minimum requirement for entry into Mr. Sombra’s engineering position;

In order to satisfy this requirement, Tsang & Associates submitted the Occupational Outlook Handbook 2017 edition, published by the US Department of Labor. It demonstrated that this labor category, mechanical engineers, holds bachelor’s degrees as being the typical entry-level education for this kind of position, and that a degree is almost always a prerequisite for the role. We were able to back this up with additional sources, such as from O*Net, which confirm that mechanical engineers require no less than bachelor’s degrees. While we satisfied this criterion in the original filing, we wanted to go further to conclusively demonstrate that this company typically required a bachelor’s degree for this position. We did this by conducting independent research on other corporations of similar sizes, that had also had recent openings for engineering positions. In these job openings we were able to demonstrate that other companies were paying the same position at roughly the same wage and performing the same complex duties. Therefore, there could be no conflict between paying Mr. Sombra this wage with this set of job responsibilities.

·         The advanced degree requirement was common to the industry in parallel positions among similar organizations and that Mr. Sombra’s position was so complex as that it could only be completed by someone with a degree;

In this point we strengthened arguments that we had made in the original submission. Tsang & Associates was able to meet this requirement by also referring to the Occupational Outlook Handbook. Further, our firm did independent research to demonstrate that other engineering firms were putting out job postings for mechanical engineers that listed bachelor’s degrees as a requirement for the position.

            We again referred to the Occupation Handbook which listed some of the skill sets that are required of mechanical engineers, such as creativity, listening skills, math skills, mechanical skills, and problem-solving skills. This is precisely the skill set that is developed in higher education. We again referred to the job postings from other companies that showed that degrees were common in the industry while also consistent with the wage level being offered.

·         The employer normally requires a degree or its equivalent for the position;

This point too was addressed in the original submission, but we needed to show that Mr. Sombra qualified for H-1B without question. To show that our client satisfied this requirement, we were able to produce past job postings rom our client showing that a bachelor’s degree was indeed the base requirement for that position. Additionally, we reinforced this position by producing and explaining the company organizational chart, showing where the position was in the company and how one with a bachelor’s degree could only fit in at that position considering the company structure. Further, we produced job opening flyers from the company that also demonstrated that the company. We did this by producing the company’s past job advertisements demonstrating that they had long required a bachelor’s degree and had long offered a salary that was consistent with what Mr. Sombra was being offered. We argued that not only consistent with H-1B requirements, but also consistent with what USCIS was requesting in the RFE.

·         The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor or higher

We were able to show that Mr. Sombra fit this requirement by demonstrating that he indeed had extremely complex and specialized job duties. This was done by helping the company President draft a letter describing his duties, submitting documents detailing his projects, and submitting his work reports. Further, we went into very great detail describing his job duties, and giving a percentage breakdown for each. This too was further elaborated on from arguments made in the original submission. This went much further than simply collecting documents from the client. This involved carefully helping our client draft new documents that explained in detail what his job entailed, and why it could be categorized as specialized.

Finally, we addressed the issue of Wage Level I itself. The Service argued that an entry level wage could not possibly be a specialty occupation because an entry level worker could only have a “basic understanding” of the job duties. We argued that this could not possibly be grounds to deny Mr. Sombra’s case because the requirement of a mere basic understanding of the occupation stems from the fact that it is an entry level position, but an entry level position suggests nothing with respect to the complexity or required education. There are entry level positions for many job positions that vary in terms of complexity and specialization. Entry level attorneys must still possess a juris doctor, entry level architects must still have extensive educational training as a prerequisite to entering the field. As Mr. Sombra has never before worked for this company, it is to be expected that he would only have a “basic understanding” of what his position within the company is. Accordingly, we were able to demonstrate that holding an entry level wage designation and performing complex job duties, requiring a higher education, were not at all mutually exclusive as all jobs, regardless of complexity, require an entry level.

 “When the RFE came in, I thought my case was done for.  Thankfully, Joseph and Chen- Cho were able to find why USCIS was in the wrong and helped me win my case”- Mr. Sombra

OUTCOME

Despite the fact that this was a completely new kind of RFE, our firm was able to secure a favorable response and we won the H-1B case. The case was ultimately approved on December 3, 2017. Our client was overwhelmingly happy about the outcome, as well as thrilled and relieved on account of the fact that he expected the case to be denied, much like similar cases.

Moreover, most of the cases that had received this form of RFE were denied. Months later they were overturned by the Administrative Appeals Office on much the same grounds that our case had argued for this client. With hard work and common sense, we were able to avoid a denial in this case.

 

*Name has been changed to protect client identity.

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