L-1A

Successful L-1A

·         Client: Mr. Chao

·         Applying for: L-1A

·         Industry: Import and Export

·         Business: Rubber and Tire Manufacturing

·         Nationality: China

·         Position: General Manager

·         Year Incorporated: 2013

·         Gross Sales: $11 Million

·         Number of Employees: 5

·         Challenges:

o   Two prior Denials from other firms

o   Only 5 employees

o   Import and Export Company (Always hard to prove Executive Duties)

o   Client does not speak English (Always hard during the interview)

 

 

Challenge

 

As the CEO of a startup company with just five employees, Mr. Chao came to us in the midst of an uphill battle in his quest for an L-1A Intracompany Transferee Executive or Manager visa. His initial application for an L-1A extension had been denied in August 2014 and he was facing the very real possibility of losing his job as well as the entire company. But when he approached us shortly after his denial, in the hopes of applying again, we were confident that even up against difficult odds, we could provide him a path forward based on our experience and expertise.

 

As the head of a company with so few employees, Mr. Chao’s responsibilities often crisscrossed the line between executive managerial duties and day-to-day functions of product production. As the L-1A demands that an employee solely perform the functions of an executive or manager—proof of which was not met by Mr. Chao’s previous attorney in the initial filing—we knew that fully immersing ourselves in the history and operations of the company, as well as becoming experts in his field, would be the best way to make a persuasive case for Mr. Chao.

 

Keys to Success

 

We needed to prove that Mr. Chao’s responsibilities to his company were solely executive and managerial. For us, this began with a deep dive into the company’s background. Rather than rely on the industry-standard checklist that failed Mr. Chao earlier in the process because it fails to consider differences in various businesses and business structures, we wanted to tell the full story of his role in the organization. That meant painting a picture of how the parent company in China operates, the business practices of similar companies across the country, and the future business plan for this particular company. 

 

We presented a clear breakdown of how he managed his time, from simply providing time estimates, such as 35 percent managerial duties, 15 percent establishing departments, 10 percent operational duties, to firmly establishing and delineating Mr. Chao’s management role from his day-to-day employees. We dove into industry reports—how this company works in tandem with the Chinese parent company, and how it relates to the industry as a whole. We provided flow charts of the company’s structure, contracts between Mr. Chao and his employees, proof of managers reporting to him, and a full breakdown of his place as executive of the company. And in doing so, we illustrated exactly why the company’s future plans necessitated that Mr. Chao stay in his executive role. All of this together provided the United States Citizenship and Immigration Services officer a clear understanding of why Mr. Chao’s situation demanded approval of an L-1A.

 

To further strengthen the application, we also solicited a letter of recommendation from an industry expert, who was able to independently confirm Mr. Chao’s role as an international executive.

 

Through these collective efforts to build a complete narrative, we were able to downplay the fact that this company had just five employees—a major reason for the initial application being denied. We told the story of Mr. Chao, a strong and capable executive of a small but successful company, providing stabilizing management and a clear vision of guidance into the future.

 

Outcome

 

By going well beyond numbers and figures, we were able to illustrate beyond a doubt that Mr. Chao’s responsibilities were indeed entirely managerial and executive in nature. After filing for the L-1A extension in October 2014, we gained approval within just two months.

 

Now, not only is Mr. Chao successfully leading his company here in the United States, we have been able to help them successfully apply for and receive L-1A visas for two additional executives. With the company thriving, we are proud to have played our part in Mr. Chao’s story.

       SUCCESSFUL L-1A EXTENSION CASE    Client: Ms. Kang  Applying for: 3 year L-1A Extension  L-1A status since: 2000  Business: Architectural Hardware Importing and Exporting  Nationality: Taiwanese (Republic of China)  Position: Director of Operations  Year Incorporated: 1999  Revenue: $285,000  Number of Employees: 2  Challenges:  Supervised employees were not managerial  Lacked organizational structure     Ms. Kang* came to Immigration Express seeking help in applying for an L-1A extension as a nonimmigrant transferee in order to continue her executive position in the United States. She had been granted L-1A status in the previous year to assist in the startup of the company in the United States and now wished to continue functioning in a similar capacity in furthering its growth even more. Otherwise, the company may simply not experience as much growth as it potentially could. As such, Ms. Kang came to us asking for assistance. We helped her file the petition on October 24, 2001 and received approval on November 13, 2001.   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.” We demonstrated that the company opened in the United States continued to maintain common ownership with its Chinese affiliate in Taiwan. We showed through the stock certificate and stock ledger entry for the company that all shares of common stock for the company have been transferred to the Taiwan company. We emphasized that there had been no business changes since the original L-1A approval the previous year. We were able to further prove the subsidiary nature of the company by demonstrating that the Taiwan company had offices in Hong Kong, Australia, Singapore, and Manila, doing business in all offices, as evidenced by recent invoices of business and the most recent accounting report. In order to further the U.S. company’s first year of operations and their viability for the future, we included documents such as its bank statements from the previous year, its tax returns for the most recent years, its trade show information, along with a sample of its catalog and advertising mediums.   How we proved that Mr. Pang’s proposed duties in U.S. Company were managerial or executive   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.” Executive capacity is defined 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”. In proving this capacity, we first qualified Ms. Kang by highlighting her credentials in her education as well as her extensive experience in product development, trade regulations, export procedure, promotional strategies, and customer relations. Through a breakdown of her duties in the U.S. Company, we showed that she supervised the Financial Department, Research and Development Department, and the Business Department. We showed that in her extended time, she would be focused on developing domestic and international business connections, promoting the company via different outlets, identifying potential market openings, and developing various strategies for continued success. We emphasized Ms. Kang’s success over the past year in establishing and developing the company in the United States, and we thus proved that she would be functioning in a similar capacity and even more in a managerial and executive capacity in the upcoming years.   Outcome   We filed the petition on October 24, 2001 and received approval in less than 3 weeks on November 13, 2001.  *Name has been changed to protect client identity.

Director of Operations at an Architectural Hardware Importing and Exporting Company applies for and is granted a 3 year L-1A Extension. We proved that her supervised employees were not managerial and we demonstrated her position in the company's organizational structure.

       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.

Machine Tool Marketing Director applies and is approved for his second L-1A extension. We proved that his duties were indeed managerial or executive in nature, and demonstrated affiliation between the companies despite indirect control.

       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.

Machine Manufacturing Company's General Manager applies for and is approved for an L-1A extension. After receiving a NOID, we demonstrated his role as a manager was indeed managerial or executive in capacity, overcoming the reasons for the NOID.