B1/B2 Visa Approved Despite Previous Childbirth in the United States
SUCCESSFUL H-1B RFE CASE
· Year: 2014
· Nationality: Spain
· Adjudicated By: USICS
· Industry: Engineering
· Company: Multimillion dollar corporation with hundreds of employees
· Position: Engineer
· Case: H-1B Petition
The position being filled was a corporate strategy analyst, which did not involve any management or supervision of any lower-level employees.
The position of corporate strategy analyst did not show up in the Occupational Outlook Handbook, 2013-2014 Edition, a handbook that USCIS uses to determine if the proposed position meets the requirements of an H-1B visa.
The Beneficiary had a professional background that lacked any clear specialization or specific area of expertise, as he held merely a bachelor’s in business administration
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 weaknesses in the case. A longtime client who was a multimillion dollar engineering company in southern California came to our firm with a new beneficiary, a Spanish national who had only a standard business background. Certainly, Mr. Martinez had no engineering background. The engineering firm waned to hire him as a “corporate strategy analyst”. To make matters more difficult, this category did not appear in the Occupational Outlook Handbook for the relevant year. This handbook is used by USCIS to determine whether someone qualifies for an H-1B position. Furthermore, the beneficiary was not managing any other personnel, despite having a business management background. Still, we were confidant that we could win the case
KEYS TO SUCCESS
First, with respect to his lack of managerial experience, we highlighted the fact that the requirements of H-1B do not specifically require any managerial or executive duties. The requirements are that an H-1B position should demonstrate the necessity of “specialized knowledge”, as demonstrated by the requirement of a higher education degree. In order to demonstrate this fact, we broke down what is job entailed, which specifically involved the following details:
Develops and manages annual operational plans
Assists the President/CEO in developing corporate strategic plans
Supports the Board of Directors conducting financial analysis
Assists Mergers & Acquisition team with search and evaluation
Participates in the review of corporate agreements, such as NDAs, LTAs, joint ventures, licensing, purchase agreements and acquisitions
Participates in special business planning projects
Supports Board activities and projects as required
Additionally, while the job designation did not appear I the Occupational Outlook Handbook, we were able to demonstrate that the position is included in a supplementary database called O*Net, which confirmed the job tasks listed above, as well as the stipulation that a college education is a requirement for this kind of position. Further, while the job title of corporate strategy analyst did not appear in the Occupational Outlook Handbook, USCIS cares more for the description of the job functions and responsibilities more than the job title itself. With this in mind we demonstrated that the position that Mr. Martinez was being assigned to was very similar to that of Management Analyst, which is listed in the Occupational Outlook Handbook. In the handbook Management Analyst is described as requiring at least a bachelor’s degree, and often as much as an MBA, as was the case for Mr. Martinez’ new job. It also described job duties that were almost identical to those of Mr. Martinez. We were therefore able to use this as evidence that his job both required an advanced university degree, as well as to corroborate the extensive and complicated nature
“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. Martinez
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.
Successful E-2 Case
● Applicant: Mr. Kuan
● Nationality: Taiwan
● Industry: Bicycle Distribution
● Position: General Manager
● Year Incorporated: 2015
● Number of Employees: 1
● Number of Dependents: 1
● Investment Amount: $130,000
o No customers in the U.S. (US Company cannot engage in sales)
o Consulting Business based in San Francisco (Consulting is always hard for E2)
o The applicant has prior immigration violation.
o Ownership Structure of US business was questionable because family ownership
o Applicant’s limited English proficiency called for countless hours of interview preparation to confidently communicate all aspects of the U.S. business plan
Mr. Kuan came to Tsang & Associates by recommendation from a friend who had a difficult yet successful E-2 case with the firm. Kuan faced several challenges but also had all the needed resources to persuade his case to be granted an E-2 visa. He came from a business background in large-scale management due to his family-run business of bicycle manufacturing in Taiwan. Kuan intended to start a U.S. branch in San Francisco that would not create competition with its international manufacturing distributors, yet prove the branch viable to the parent Taiwanese company. Kuan came to Tsang & Associates with no U.S. business plan, broken English, existing USCIS suspicion, and a dream to operate and live in San Francisco with his family.
Keys to Success
In order for one to be successful in their E-2 visa application, there are several requirements that are necessary according to United States Citizenship and Immigration Services (USCIS) regulations:
1) The treaty investor must possess the nationality of the treaty country
2) The corporation must be a bona fide U.S. Corporation, a real operating enterprise and not a fictitious paper organization
3) Capital invested must be substantial and irrevocably committed to the enterprise
4) The investment cannot be marginal
5) Investor must have ability to develop and direct the enterprise
6) Investor must have intent to depart following the end of E-2 status
More than Marginal Revenue
For an E-2 visa, the annual business revenue cannot be marginal, meaning that Kuan’s business needed to produce $170,000 - $200,000. However, the San Francisco branch could not engage the public due to the Taiwan manufacturer’s international contracts, which is where the challenge arose in proving above marginal revenue. Tsang & Associates looked at Kuan’s biggest customer: the Taiwan manufacturer, of which Kuan owned significant shares. The focus shifted onto the manufacturer acting as a fiscal sponsor able to consistently provide funds to sustain the U.S. operation. In order to prove sponsorship, Tsang & Associates created a thorough and clear business plan with production lines and outlines of services that the branch would provide to the parent Taiwan company. Afterward, Tsang & Associates created a contract with a Memorandum of Understanding to show partnership between the two companies. All of these key documents were able to be obtained through Kuan’s partial ownership of the Taiwan factory.
Real and Operating Enterprise
Kuan’s brother was already in the United States operating a small version of the San Francisco branch. The applicant’s case became suspicious to USCIS with clear immigrant intent because Kuan’s brother transferred shares of the U.S. branch over to him, suggesting that his brother was helping him immigrate. Part of the detailed business plan Tsang & Associates cultivated had thoroughly outlined the partnership between Kuan and his brother with the parent Taiwanese manufacturer being a family-run business. The branch would hire high-end employees such as designers and technicians in Silicon Valley to generate ideas, portfolios, apps, and designs. Tsang & Associates set everything up so that all Kuan needed to do was set foot in the U.S., lead his team, create products, and share final concepts with the Taiwan manufacturer to materialize and distribute worldwide.
USCIS Interview Preparation
The consulting business Kuan was building in San Francisco is usually frowned upon by USCIS because it has no customer interaction or storefront shop. Having no customer-based services made the operation somewhat intangible due to its legal existence solely through paperwork. Another challenge Kuan faced was being able to effectively communicate his intent to depart and dismiss concern for clear immigrant intent. Tsang & Associates helped Kuan prepare to answer all questions confidently after multiple practice interviews, business plan walkthroughs, and copious amounts of English coaching.
With the brand of a global company behind him and all the external resources and credentials he needed, Kuan was granted the E-2 visa and his family was able to legally enter the United States. The E-2 visa was approved within three days. Everyone was very happy with the giant success and the attorney later bought a top of the line bicycle for his triathlons.
Student status with the school had been revoked. Because of this, his F-1 visa was also revoked.