SUCCESSFUL L-1A EXTENSION CASE

  • Client: Mr. Wong
  • Applying for: L-1A Extension
  • L-1A status since: February 7, 2014
  • Nationality: Taiwanese (Republic of China)
  • Business: Machine Manufacturing
  • Position: General Manager
  • Year Incorporated: 2014
  • Revenue: $4,000,000
  • Number of Employees: 4
  • Challenges:
    • Notice of Intent to Deny (NOID) after initial filing
    • We had no details of two previous submissions from other attorneys

Mr. Wong* came to Tsang and Associates seeking to file for L-1A extension in order to continue to work to build up the company’s new office in the United States. He had already had two other attorneys file for his case; however, we did not have any knowledge of what had already been submitted, forcing us to blindly submit our petition. Mr. Wong had been sent to the United States earlier in the year in order to open up a new chapter in the company’s story. Seven months had passed since the initial start-up and Mr. Wong needed to continue to be there to facilitate its growth and further expansion. Otherwise, the company’s new U.S. branch office would likely be stagnant without someone of Mr. Wong’s caliber to help. After helping Mr. Wong file for extension, we received a Notice of Intent to Deny (NOID), meaning that we had to overcome USCIS presumptions and intent to deny the extension in order to prove adequately that Mr. Wong was indeed qualified. We received the NOID on September 22, 2014 and responded on October 20, 2014. Approval was received on October 31, 2014.

Keys to Success

When we received the NOID, we noted that its sole focus was challenging whether or not the petitioner had established that the beneficiary is employed in a position that is primarily executive or managerial in nature, as required by USCIS. However we believed strongly that Mr. Wong’s duties were indeed managerial. As such, we had to prove per USCIS regulations, that his duties entailed “managing the organization, or a department, subdivision, function or component of the organization” and primarily “supervising and controlling the work of other supervisory, professional, or managerial employees, or managing an essential function within the organization, or a department or subdivision of the organization.”

According to the NOID we received, USCIS noted duties such as “coordination of shipping with customs agents for clearance on overseas deliveries”, “training and managing local technical support”, and “directing and coordinating promotion of products and developing new markets” as not being managerial or executive. The NOID stated that “these duties do not appear to be consistent with those typically performed by someone in a managerial or executive position. The duties described are more indicative of an employee who will be performing the necessary tasks to provide a service or to produce a product. An employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity”.

Contrarily, we strongly disagreed and made clear that the reviewing officer’s assumptions were incorrect, but not without challenges. This was difficult to prove because there were only 4 employees present in the company, thereby forcing Mr. Wong to perform duties that were not managerial or executive in nature. We had to show that even in performing these ordinary duties, his primary duties were indeed qualified. In addition, we had to present evidence in a way that did not contradict any other previous submission. We had to do this blindly, without information about what was previously submitted. In order to do so, we demonstrated using a letter from the company as well as the company’s business plan, that Mr. Wong’s duties mentioned and much more, were inherently managerial in nature. In addition, we emphasized that the non-qualifying duties Mr. Wong performed were merely a small portion of his overall duties. We explained that Mr. Wong was fully engaged in the broader goals of directing and developing company growth and expansion, lobbying for new business contracts, and dealing with customer and public relations, all clearly managerial functions. Moreover, we proved that Mr. Wong indeed had supervisory duties over professionals, pointing to managerial work reports and the company’s business plan.

Furthermore, we highlighted the need for a manager of Mr. Wong’s caliber and experience, given that the company had nearly $1 billion in annual income. We proved that with the confidence of the officers, directors, and shareholders of the company, Mr. Wong was sent to assure that the U.S. company undergoes a successful commencement of operations and gets established on a sound financial footing with an adequate client base. Mr. Wong served as a liaison with the parent company and was responsible for implementing the goals and objectives of the parent company. In addition, we demonstrated that given the 7 months that Mr. Wong had been in the U.S. on L-1A status, he had not had enough time to show his strength in solidifying the U.S. platform. We showed that the company had achieved and even exceeded all of its milestones and experienced major gains, and is only pushing more and more forward in growth. We thus proved that it was imperative for Mr. Wong to oversee its operations as General Manager on continued L-1A status.

Outcome

We submitted the response to the NOID on October 20, 2014 and received approval on October 31, 2014.

*Name has been changed to protect client identity.