MARKETING DIRECTOR SECURES EB-1C STATUS

• Country/Region: Taiwan, China
  
• Case: EB-1C classification
• Challenges:
  1. Mr. Pang performed several duties that were supervisory and not executive or managerial in nature
  2. Affiliation was difficult due to indirect control by the Taiwan company
  3. Two previous denials from two different attorneys

BACKGROUND

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

*Name has been changed to protect client identity