SUCCESSFUL L-1B CASE

• Petitioner: Tire Company
• Industry: Tire Manufacturing
• Beneficiary: Mr. Wong
• Position: Accountant
• Nationality: China
• Age: 25
• Applying for: L-1B Intracompany Transfer (Specialized Skill Workers)
• Challenges
  o Accounting is inherently general, without special knowledge
  o The American branch office was relatively small, had only 4 employees
  o Mr. Wong was very young, had only worked for the company for two years, right after    college

Desperately needing Mr. Wong* to come to the American branch office, Tire Company based in China sought to file an L-1B Specialized Skill Workers petition with United States Citizenship and Immigration Services (USCIS) on behalf of Mr. Wong, one of its accountants, to be transferred to its American office. Mr. Wong was a young accountant who had been groomed for a couple of years to take the position in the American branch office. Historically, L-1B visa petitions have been extremely difficult to obtain and the denial rates have increased exponentially in recent years. Mr. Wong and Tire Company came to Tsang & Associates in hopes that we would be able to buck the trend and help their American branch office survive by assisting them in constructing a convincing and complete L-1B visa petition for Mr. Wong. The petition was filed on March 10, 2015 and approved on June 3, 2015.

Keys to Success

How we proved the existence and activity of the Petitioner in the United States and in China

One of the first steps we needed to take in this case was fulfilling the requirement that Tire Company in the U.S. and in China had to be in existence and doing business. This is necessary due to the USCIS concern that a makeshift company would be utilized to obtain visas for overseas workers. While proving the Chinese company was in existence and doing business was relatively straightforward due to its strong reputation, the greater challenge was proving that the American company was indeed doing business. This was more difficult because there were only 4 employees present at the American office and had only been formed 2 years prior.

Tire Company was already a well-established, long lasting, and enduring company in China. For the branch office in America, we were able to provide evidence of their existence and activity through financial statements, copies of their contracts and bills of lading, and photos of their location. We also assisted in constructing a U.S. Operations Business Plan to demonstrate the projection for growth. By carefully showing that the American office was indeed involved in the “regular, systematic, and continuous provision of goods and/or services by a qualifying organization”, as defined by law, we were able to establish the legitimacy of both the Chinese and American companies, allowing for further processing of the petition.

How we proved the Relationship between the Petitioning U.S. Company and the Foreign Entity

In order for the intracompany transfer to be possible, we had to demonstrate that one company involved in the transfer had to have “effective control” of the other company or that the same group of shareholders “effectively controlled” both companies. This burden to prove the legitimacy of the intracompany nature was relatively light. To prove this, we provided evidence showing that the American company was a subsidiary of the Chinese company. By definition, in order to establish a subsidiary relationship, the parent must own or control at least half of the entity, or own 50 percent of a 50-50 joint venture, or inherently control the entity. In fulfilling this definition, we acquired a statement from the company’s secretary that verified each of the shareholders by name, and coupled it with the articles of incorporation. We demonstrated that more than 50 percent of the U.S. Company was owned by the parent company in China. This validated the fact that the U.S. company was majority owned by the Chinese company, satisfying the requirement for an intracompany transfer.

How we proved the Beneficiary’s duties in the American office required specialized knowledge

One of the major challenges we faced in this case was establishing that Mr. Wong would be performing duties that required specialized knowledge in America. According to law, the applicant must be seeking to enter the United States in order to serve in a specialized knowledge capacity; this prevents companies from sending over just any individual who wishes to enter the United States. This was challenging because of the nature of Mr. Wong’s occupation. Generally speaking, performing accounting services does not require specialized knowledge, unlike engineers; this far decreases the likelihood that the transfer would be granted. So our task was to show that specialized knowledge was necessary for what Mr. Wong would be doing in the United States.

In order to do so, we highlighted Mr. Wong’s extensive training in the past couple years with the company since his employment in 2012, all of which had prepared him for similar duties in the United States. We then asked Tire Company to provide a complete breakdown of his proposed duties in the American branch office and the rough percentage of his time each task would take. We emphasized that these duties, including advising department heads, developing price projections, and overseeing all internal audits for both sides of the company, required someone of Mr. Wong’s skill and knowledge to perform. We stressed that training a new employee to perform these tasks would strip away time and money that Tire Company couldn’t afford to lose. We showed that the job required a knowledge beyond a general understanding of the tire market and industry, but rather knowledge of the processes and products that are specific to Tire Company.

In support of this claim, we submitted an employment verification letter detailing the duties of the American accounting job. Through this, we were able to demonstrate that the job duties that Mr. Wong would be performing included tasks that required knowledge of both the American and Chinese tire market, practices, and even tax law. In addition, we showed that the position heavily involved coordinating between the two offices, and needed to be fulfilled by an individual inside the company, namely Mr. Wong who had strong working knowledge of the business model and financial practices of Tire Company that would be vital to bring to the American branch.

How we proved Mr. Wong’s possession of specialized knowledge

The main difficulty that arose in this case was proving that Mr. Wong had specialized knowledge needed to qualify for the L-1B visa. By law, the beneficiary must be shown to have worked for at least one year for the overseas company and that he possessed specialized knowledge. Per definition from the USCIS, the applicant must possess special knowledge of the company, its product or service, or its application to the international market; otherwise he must possess advanced knowledge of the processes and procedures of the company. This was challenging because we had to show the involvement of specialized knowledge in his work overseas and establish the uniqueness of Mr. Wong’s position, how he was differentiated from others in comparable positions. With no clear cut definition of what constitutes specialized knowledge, we had to compile a clear cut argument showing his possession of it.

One of the key pieces of evidence we used in proving this was an employment verification letter from the Head of Human Resources of Tire Company. We established that Mr. Wong, since 2012 when he was first hired by Tire Company, had acquired an in depth and working understanding of the financial practices of Tire Company. He was especially well versed in the accounting systems and software that was unique to Tire Company; he received an entire year’s worth of training just to understand the software necessary to perform his accounting functions. This proved to be crucial, as we were able to show that it would be extremely difficult and time consuming to attempt to find another accountant who was as well seasoned and knowledgeable as Mr. Wong in both the American and Chinese accounting practices and procedures. We emphasized that the scope of what Mr. Wong knew was unparalleled in the U.S. labor market and therefore making it impractical for Tire Company to search for another accountant outside of its own force.

In addition, we offered that Mr. Wong’s knowledge contributed strongly to Tire Company’s competitiveness in the marketplace due to his understanding of the Tire Company procedures and market commerce. In order to support this, we highlighted that Mr. Wong has actually put this knowledge into practice overseas, evidenced by his over achieving performance compared to his peers and his intimate involvement with the internal auditing process and accounting documents. We noted that knowledge of international tire manufacturing was not very common at all, that Mr. Wong knew the intricacies of Tire Company’s international market, fully understanding the practices and differences between the U.S. and China.

Lastly, we provided evidence of Mr. Wong’s qualifications, procuring Mr. Wong’s rich education history and impressive list of accolades and certificates, solidifying his suitability for his planned role and tasks to be performed in the United States.

Outcome

We submitted the petition on March 10, 2015. After satisfying a Request for Evidence, Mr. Wong’s L-1B transfer visa was approved on June 3, 2015.

*Name has been changed to protect client identity.