SUCCESSFUL L-1A EXTENSION CASE

  • Client: Mr. Pang
  • Applying for: Second L-1A Extension
  • L-1A status since: July 20, 2009
  • Business: Machine Tool Production and Distribution
  • Nationality: Taiwanese (Republic of China)
  • Position: Marketing Director
  • Year Incorporated: 2000
  • Revenue: $28,900,309
  • Number of Employees: 24
  • Challenges:
    • Mr. Pang performed several duties that were not executive or managerial in nature
    • Affiliation was difficult due to indirect control by the Taiwan company

Mr. Pang* came to us at Tsang and Associates seeking assistance in filing for an L-1A extension. He had first gained L-1A status in 2009 and had already been approved for one extension previously. This time, we helped Mr. Pang file for his L-1A extension concurrently with an application for EB-1C classification for permanent residency. The criteria for both L-1A and EB-1C are nearly identical. Thus as Mr. Pang was awaiting approval for his EB-1C petition, he needed to extend his L-1A status during this interim period allowing him to continue to work outstandingly for the U.S. Company. We filed the extension on March 18, 2014 and gained approval within 3 months.

Keys to Success

How we proved the control relationship between U.S. Company and Taiwan Company

We first had to prove that according to USCIS requirements, that the U.S. Company “is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas.” In order to demonstrate this relationship, we indicated with the U.S. Company’s Articles of Incorporation and tax returns of the previous three years, that the company is indeed a completely foreign owned U.S. corporation. However, there was a challenge due to the fact that the U.S. Company stock was owned by two companies that had different names than the Taiwan company. We demonstrated through the company’s corporate website, stock certificates, and stock ledgers that these two companies completely owned the U.S. Company but also proved that these two companies were both included under the main Taiwan Company of which the U.S. Company was a subsidiary. Thus we established that the U.S. Company was therefore completely owned by the overarching Taiwan Company, fulfilling the control relationship requirement.

How we proved that Mr. Pang’s proposed duties in U.S. Company were managerial or executive

This was the more difficult part of this case, as this requirement was the reason that the previous two submissions were denied. As defined by USCIS, managerial capacity consists of tasks including “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.” Mr. Pang’s duties included several that were supervisory in nature and not qualified as managerial or executive, such as updating customer information, maintaining good customer relations, and making visits to customers. In order to combat this, we focused on Mr. Pang’s role as manager of the marketing department. We obtained expert opinion letters and employment verification letters demonstrating that Mr. Pang had the responsibility of managing and overseeing all of the marketing operations of the company and therefore formulating marketing strategies that would guide the company by directing activities and development; this proved that Mr. Pang effectively managed a major component of the company. In addition, we showed that in his position as Marketing Director, Mr. Pang essentially determined the direction and success of the organization. We also proved that as Mr. Pang was controlling the work of a Marketing Manager as well as a Sales Manager, Mr. Pang would be employed in a supervisory position over other supervisory and professional employees. Furthermore, we highlighted that Mr. Pang had control of personnel, including the right to hire and fire staff, along with supervising their daily activities.

Executive capacity is defined by federal regulations as “directs management of the organization or a major component of function of the organization”, “establishes the goals and policies of the organization, component or function”, “exercises wide latitude in discretionary decision-making”, and “receives supervision or direction from higher level executives, the board of directors, or stockholders of the organization”. We indicated that in Mr. Pang’s role, he would be making all of the strategies of the marketing plan, making the decisions in this department, and establishing as well as communicating the goals and vision of the company to his subordinates. We showed that as a Marketing Director, Mr. Pang had the authority to exercise discretion over marketing operations, activities, and functions of the company. He was instrumental in managing the company’s complex marketing initiatives.

Outcome

We filed for the L-1A extension on March 18, 2014 and gained approval within 3 months, allowing him to continue to work until he gained his EB-1C approval later that year.

*Name has been changed to protect client identity.