Law Clerk

A man with unlawful presence, a complex history, and various miscommunication between documentation successfully reopens his I-485 petition.

Successful I-290B (Motion to Reopen) Case Applicant: Mr. Kang Nationality: Taiwan Applying for: Motion to Reopen and Reconsider [I-290B] Case Type: I-485 Time: 3 months Challenges: Previous denial of I-485 due to insufficient evidence showing that Mr. Kang was not at fault for unlawful presence Desperate, Mr. Kang came to Tsang and Associates seeking assistance after recently being denied his I-485 adjustment to permanent resident status, in hopes that United States Citizenship and Immigration Services would reopen his I-485 petition. If his petition did not get reopened, he would have to leave the United States at the expiration of his current visa or go through the entire filing process again hoping for a more favorable outcome. Mr. Kang had been denied on the basis that he did not provide sufficient evidence that explained that he was not at fault for not having been issued any I-20 Certificates of Eligibility for Nonimmigrant Student Status during the years 1997-2001, his high school years, prior to being reinstated to his F-1 Academic Student status while at the University of California, Los Angeles. After trying to apply for his I-485 readjustment of status and being denied, Mr. Kang franticly tried to find an attorney to help him take the next step in his case. When he found us at Tsang and Associates, we helped him create a Form I-290B Motion to Reopen and Motion to Reconsider. He received his denial on February 24, 2016 and we submitted the Motion to Reopen and Motion to Reconsider on March 21, 2016; approval for the Motion was given on June 21, 2016. Keys to Success Even though Mr. Kang was initially rejected from his readjustment of status, we believed strongly in his case and were confident that Mr. Kang’s petition for readjustment of status would be reopened after review. We had to file the motion to reopen by March 25, 2016- 30 days after the initial denial notice. We first had to tackle the issue of Mr. Kang’s unlawful presence during the years 1997-2001. We showed that per USCIS policy, there are exceptions to failing to maintain lawful immigration status. These include the applicant being restored to status and also if the failure to maintain status was not the fault of the applicant. Mr. Kang’s situation met both of these exceptions, opening up the door for reconsideration. In our motion to reopen, we stressed that Mr. Kang had already been reinstated under F-1 student status in 2003, and therefore should have been allowed to adjust status under USCIS regulations. We highlighted that because Mr. Kang was indeed allowed reinstatement back in 2003, he had already met the requirements of USCIS to have his student status and Form I-20 reinstated. In addition, we had to properly address the reasons for denial given by USCIS, being the lack of evidence showing that the failure to maintain status was not the fault of Mr. Kang. We first submitted an affidavit from the father of Mr. Kang, in which he himself admitted that he was to blame along with the Mr. Kang’s sister who was the de facto guardian, for not ensuring that Mr. Kang went through the proper procedural steps to receive I-20 status. Furthermore, we asked the school district at which Mr. Kang attended to write a letter detailing the circumstances of Mr. Kang’s enrollment at the school. The letter stated that “there were no inquires made or conversations initiated with him regarding his immigration status” and therefore no I-20 was issued to authorize his attendance as an F-1 foreign student. We thus demonstrated that the father, sister, and school district were the ones to blame in not providing Mr. Kang, a minor at that time and thus understandably not aware of the situation, with the proper procedures for foreign student status. In fact, we established that no action was taken during Mr. Kang’s high school years; only when Mr. Kang was informed of his unlawful status at UCLA, was he made aware of the circumstances surrounding his immigrant status. We emphasized that once Mr. Kang was indeed made aware of his unlawful status, he immediately had the situation rectified through UCLA’s International Student Center. We proved that Mr. Kang’s case should be reopened and reconsidered, that his unlawful presence should be excused, and that Mr. Kang should indeed be allowed to readjust his status. Outcome We received approval of the petition to reopen Mr. Kang’s case in 3 months on June 21, 2016. *Name has been changed to protect client identity.
Law Clerk

A CEO with only 2 employees in the U.S. office successfully proves managerial / executive capacity for a Request for Evidence.  

Successful L-1A RFE Case Nationality: Chinese Adjudicated By: US Consulate Industry: Rubber (Material Goods) Company: Startup Position: CEO Case: L-1A Extension Challenge: Only 2 Employees in U.S. Office Strong legal advice and an impeccable command of the law can be the difference between L-1A approval and denial.  With prior L-1A denial, complicating the matter is that there are times when USCIS officers have a very poor command of their own rules and regulations.  Mr. Wong was transferred to the U.S. from their China based parent company to establish the U.S. subsidiary. However, the company only had 2 employees and 3 contractors with very limited office space. When the case was adjudicated by the immigration officer, he requested further evidence regarding the employment structure of the corporation showing that Mr. Wong was performing as a manager and executive in such a small operation ant not involved in the day-to-day operations of the business.. More specifically, the immigration officer stated that the applicant could not be both a manager and an executive and asked the applicants to only apply for one position.  Immigration Officer also requested additional evidence regarding the employment structure of the corporation to prove that the applicant was performing as either a manager or executive and not involved in the day-to-day operations of the business. Keys To Success As Mr. Wang was in fact involved in both a managerial and executive position and held some day to day responsibilities, it seemed that the case was doomed.  However, Tsang & Associates was able to successfully prove to the immigration officer that a L-1A transferee could be both an executive and manager and perform both duties by citing previously affirmed case law and successful appeal cases.  Holding managerial and executive duties are not mutually exclusive.  We showed with convincing evidence that the applicant was both an executive in establishing the business and a manager in helping maintain the business operation.   Second, to prove that that our client was performing at a managerial level we prepared a detailed explanation regarding the management structure of the company, explained how each personnel in the company contributed to its success, provided easy to understand flowcharts and power point presentations that explained how the company worked, and a detailed and well-designed business plan that justifies the small operation of the business. It was the company’s burden to show that the applicant was not involved in day to day operations and how the employees of the company did the majority of the work. To do this our attorneys interviewed each of the employees, contractors, and managers to have a full understanding of how their business operated on a day to day bases in order to present to the immigration officer a clear picture of how the company operated. “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. Wong Outcome Our client’s L-1A application was accepted and approved within two weeks of the request for evidence. *Name has been changed to protect client identity.
Joseph Tsang

Owner and CEO of a Marketing Firm specializing in Taiwan based imports is granted an E-2 Treaty Investor visa even though she had no experience running a business and had frequently visited the United States in prior years.

SUCCESSFUL E-2 VISA CASE Nationality: Taiwanese Industry: Marketing Firm Position: CEO, Owner Year Incorporated: 2016 Number of Employees: 3, including Ms. Chen Number of Dependents: 1 child, U.S. citizen Investment Amount: $250,000 Challenges: Applicant/CEO has prior CBP record showing frequent visits to the United States Applicant/CEO’s child is a U.S. citizen showing immigrant intent Applicant had no experience running a business Ms. Chen* came to Tsang and Associates seeking assistance in forming her E-2 Treaty Investor visa application. She had a child in the U.S. and was looking to stay for an extended amount of time. Previously, Ms. Chen would visit and stay on Taiwanese visa waivers, but was warned by a CBP officer at the airport that her frequency of visitation would be a cause for concern. She came to us to help her incorporate her business and help with the initial startup for her E-2 qualifying business. Her business specialized in marketing Taiwan based imports, focusing on marketing consultation for Taiwanese companies looking to sell in the United States by providing them the resources and the connections to sell internationally that they would otherwise be lacking. This was Ms. Chen’s first business venture, as many of her previous jobs involved consulting companies on marketing strategies and teaching as a professor. After much revision and hard work, Ms. Chen formally became the owner of her very own marketing firm. Once she began business, she sought our help in filing an E-2 Treaty Investor visa application. We filed her petition on July 19, 2016 and received approval on the same day. 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 regulations: The treaty investor must possess the nationality of the treaty country The corporation must be a bona fide U.S. Corporation, a real operating enterprise and  not a fictitious paper organization Capital invested must be substantial and irrevocably committed to the enterprise The investment cannot be marginal Investor must have ability to develop and direct the enterprise Investor must have intent to depart following the end of E-2 status Nationality of Treaty Country When Ms. Chen first came to us, we strongly felt that we could get her E-2 visa approved. First off, Ms. Chen was a Taiwanese national, automatically qualifying her as a treaty investor. Expounding upon this, we showed with the Articles of Incorporation and Share Certificates that Ms. Chen was indeed 100% owner of the company and thus the company completely met the foreign ownership requirement. Proof of Real and Operating Enterprise In addition, we had to show that the company was a bona fide U.S. Corporation. This was challenging at first because the company had only recently been incorporated in the United States. We began this process when she first retained us. We helped Ms. Chen formally incorporate her business and helped her obtain the appropriate business licenses and sellers permits. We also helped her establish purchase agreements and contracts with Taiwanese companies looking to expand into the U.S., and we even created a CPA-certified business plan for her company, detailing her company’s projected growth and marketing strategies. We helped her list job openings for her company online, which resulted in the hire of two part-time employees, both of with whom she has become very close. We also helped her create an e-commerce website on which she had already sold numerous products, even before her visa was approved. Using all of this, we fully proved Ms. Chen’s company as “a real operating enterprise and not a fictitious paper organization”. Substantial, Irrevocably Committed Investment We also proved that Ms. Chen’s investment was substantial and irrevocable due to USCIS fears that the investment is simply just a “risky undertaking”. We first established Ms. Chen’s total investment by referring to her financial statements. To help fund her company, Ms. Chen sold her house in Taiwan. In combination with her savings, she made an initial investment of $150,000 and eventually added another $100,000. By the proportionality test of federal regulation, because Ms. Chen owned 100% of the company, her investment of $250,000 was indeed substantial. In order to further the irrevocability of the investment, we noted that Ms. Chen had already incurred numerous expenses such as investing in equipment, design, accounting, and legal costs. She had also already signed purchase agreements and bought thousands of dollars’ worth of merchandise to begin her enterprise. In addition, she had already signed a 1 year lease for the operating location of the business and hired 2 employees, thus demonstrating her full commitment to the endeavor. More than Marginal Investment A business submitted with an E-2 application must prove to return more than marginal revenue. Ms. Chen’s business is based in the San Francisco area, which posed a problem in terms of profit. In such a big city, the cost of living is relatively high compared with the rest of the state. In addition, Ms. Chen’s company must have high enough sales to compensate for the cost of operating, payroll, and eventual expansion. We helped Ms. Chen modify her business plan to expand her company’s offerings and earn a profit in the first year of operation. We helped her create multiple streams of revenue by increasing her company’s brand offerings and adding a marketing consulting service as requested service. Now, Ms. Chen’s company not only serves as a channel for Taiwanese companies to branch into the U.S., but it also sells American sporting goods to companies in Taiwan and offers marketing counseling. We proved Ms. Chen’s company is more than marginal by presenting her purchase agreements with Taiwanese companies, worth hundreds of thousands of dollars in product. Ability to Develop and Direct the Business Enterprise A key part of the E-2 Visa is that the applicant possesses the ability to direct and develop their business. Although she had no business experience to begin with, we proved that Ms. Chen was more than qualified to start and manage a business by providing copies of over sixty certifications and awards that she had earned throughout her marketing career. Included among these were her Ph.D. in Marketing and her Master of Arts degree in Economics. With such high achievements, we showed that Ms. Chen was fit to direct the operations of her business. Even though she did not have business experience, Ms. Chen displays a solid background in her business’s industry. With vast experience, we proved that Ms. Chen was, if possible, overqualified to run her marketing company. Intent to Depart An equally important part of the E-2 visa is that the applicant plans to return to their home country. There were many obstacles to overcome in proving Ms. Chen’s intent to return. She had sold her house in Taiwan to create investment capital, currently had U.S. citizen child, and had previously visited the United States with a high frequency. However, we were able to prove her intent to return by sharing a portion of Ms. Chen’s long-term business plan— she plans to help Taiwanese companies market their products to Taiwanese consumers. To do this, she would return to Taiwan to work closely with companies and their target markets. Interview Preparation Beyond the paperwork, we also helped Ms. Chen prepare for her E-2 Application interview. Ms. Chen began the E-2 Application process a bit timidly, as she had never attempted such an enterprise before. She feared her business plan would not be strong enough to impress the Taiwanese immigration officers. We helped her prepare for any and all questions that might be asked of her and her company, requiring her to answer as detailed as possible. She worked through over ten hours of practice interviews, answering a seemingly endless line of questioning. On Wednesday, July 27, 2016, Ms. Chen went for her interview. After her hours of preparation, she looked and felt substantially more confident than she had when she first began. After the interview had been completed, Ms. Chen was extremely grateful that we had prepared her for the exact questions that the officer asked, allowing her to pass smoothly. Outcome On Wednesday, July 27, 2016, Ms. Chen’s E-2 Visa was approved. *Name has been changed to protect client identity.
Joseph Tsang

Machine Tools Production and Distribution company Marketing Director applies and is approved for EB-1C classification. We were able to demonstrate that his primary duties were managerial or executive in nature, overcoming two previous denials from filings with two different attorneys.

SUCCESSFUL EB-1C CLASSIFICATION CASE Petitioner: U.S. Machine Company Beneficiary: Mr. Pang Applying for: EB-1C classification 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 supervisory and not executive or managerial in nature Affiliation was difficult due to indirect control by the Taiwan company Two previous denials from two different attorneys U.S. Machine Company came to Tsang and Associates hoping to file a petition for EB-1C classification as a Priority Worker- Multinational Manager on behalf of Mr. Pang*, who would serve as the Marketing Director of U.S. Company after serving in a similar capacity in Taiwan and for several years with L-1A status. Mr. Pang’s EB-1C classification had previously been denied twice after filings by two different attorneys. In 2010, the company filed for EB-1C classification with an attorney located in Rowland Heights, California; Mr. Pang was denied classification. A couple years later, the company again tried to file for EB-1C classification for Mr. Pang with a different attorney located in Diamond Bar, California; a denial was again received. Both denials were on the basis that Mr. Pang would not be primarily performing managerial or executive duties. Distressed, U.S. Company and Mr. Pang came to Tsang and Associates in order to finally gain approval of Mr. Pang’s EB-1C classification after two previous failures. We submitted the petition on June 24, 2013 and received approval on November 19, 2014. Keys to Success Initially, when Mr. Pang and U.S. Machine Company first came to us, we knew that this case would be difficult based on two previous denials of EB-1C classification for Mr. Pang, one from 2010 and the other 2013. However we strongly believed in our client’s case, that we would be able to overcome the reasons given for denial the past two times while not contradicting the previous two submissions. According to USCIS regulation, in order to qualify for EB-1C classification, one must prove a control relationship between the U.S. company and foreign company, and also that the beneficiary would be performing duties in a managerial or executive capacity. 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.” 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 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. A previous denial cited that “from the descriptions of the job duties, it appears that many of the tasks which the beneficiary performs are not of a managerial or executive nature, but would ordinarily be performed by a general marketer, sales staff or other employees or contractors”. 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 The petition for EB-1C classification was filed on June 24, 2013 and we received the approval on November 19, 2014. Our client was relieved that finally, on the third try, the petition was approved. *Name has been changed to protect client identity.
Joseph Tsang

Mexican national with a U.S. citizen wife and child applies and is approved for an Unlawful Presence Waiver. We proved that denial of a waiver would lead to health problems for the wife, devastate familial ties, and hinder the growth of their child, constituting extreme hardship.

SUCCESSFUL UNLAWFUL PRESENCE WAIVER CASE Client: Mr. Garcia Applying for: I-601A Provisional Unlawful Presence Waiver Nationality: Mexican Length of Marriage: 10 years Number of Children: 1 Challenges: Mr. Garcia previously filed at another office and was denied. Mr. Garcia was earning a meager income. Mr. Garcia* came to Tsang and Associates desperately needing assistance in obtaining an I-601A Provisional Unlawful Presence Waiver. Mr. Garcia first came into the United States unlawfully when he was 23 years old from Mexico and now strongly desired to become a lawful U.S. resident. Without it, Mr. Garcia would suffer tremendous losses of opportunity in the United States and would lose eligibility to come to the United States for 10 years while potentially leaving behind a U.S. citizen wife and son. Distressed, Mr. Garcia sought our help in his waiver application that was previously denied. After sitting down with him and his family during a strategy session, we were able to compile evidence and submit the application on June 16, 2015. It was approved on August 24, 2015. Keys to Success When Mr. Garcia first came to us and explained his situation, we were confident that we could prove that should Mr. Garcia be denied a waiver and face deportation, detrimental consequences would occur. According to USCIS regulation, the waiver would only be approved if we were able to show that extreme hardship would occur subsequent to the denial. Although extreme hardship is not explicitly defined by USCIS, some factors of interest include the presence of a lawful permanent resident or U.S. citizen spouse or parent in this country, the qualifying relative’s family ties outside the U.S., the conditions in the country or countries to which the qualifying relative would relocate and the extend of the qualifying relative’s ties in such countries, the financial impact of departure from this country, and significant conditions of health. In establishing extreme hardship in the event of deportation, we first highlighted that Mr. Garcia had a wife and son. We showed through documents such as a marriage certificate, work verification, various photos, and the son’s report cards and awards, that the family indeed had an established life here in the United States. Mrs. Garcia had been working for 17 years and their son was doing well in school. We stressed that should Mr. Garcia be forced to leave the United States, his family would have two options: either go with Mr. Garcia to Mexico or remain in the United States. In looking at the first option, we researched and proved that Mexico would be dangerous for both Mr. Garcia and his family due to the high crime rates and political corruption. We also showed that Mexico’s crumbling education system would be inadequate for their son who had special educational needs and speaks little Spanish. In addition, we provided hospital records and doctor’s letters indicating the severity of Mrs. Garcia’s anxiety disorder, ovarian cyst condition, and high cholesterol, all of which would be further exacerbated with a move to Mexico. We highlighted that Mexico’s limited healthcare system would be detrimental for Mrs. Garcia. Moreover, we explained that both of Mrs. Garcia’s parents had significantly demanding medical conditions that require daily attention and are accompanied with expensive medical bills. We noted that presently, Mr. Garcia and his family were heavily involved in providing for them; should they be unable to do so, there would be a significantly heavy financial burden and emotional pain for the family. The family would also be separated from all the friends they had made in the United States up to this point. Furthermore, we proved that should Mrs. Garcia and her son remain in the United States in the event of Mr. Garcia’s departure, Mrs. Garcia would indeed suffer greatly with emotional struggles and physical ailments. Being away from her husband would most certainly entail greater severity of anxiety and difficulties. We also stressed that she would lack the support from her husband which would bring financial difficulties as well. We proved through bank statements and personal statements from friends and family the importance of Mr. Garcia’s financial contributions to both his immediate family as well as his extended family, most notably Mrs. Garcia’s parents who required great medical attention. In addition, we researched the risks of Mrs. Garcia’s ovarian cysts and the disastrous effects of their potential rupture or enlargement, all of which would be made much worse without Mr. Garcia’s presence in the United States. Thus we established that every consequence of Mr. Garcia’s potential departure from the United States would bring about significant and extreme hardship to both his immediate family and extended family as well. We proved that it would result in devastating health problems for his wife and in-laws in addition to bringing about emotional pains and financial sufferings for his family. Ultimately, we proved that the social, financial, and familial ties for Mr. Garcia were simply too strong to break apart; if they were broken, extreme hardship for the family members would be sure to occur. Outcome We filed the petition on June 16, 2015 and was approved on August 24, 2015 without any request for evidence. Our client was extremely grateful as he could continue living a blessed and joyful life with his family. *Name has been changed to protect client identity.