EB-1C Immigration for Multinational Executives Experiencing RFE Requests

China company: Established in 2006, logistics industry
U.S. Company: Established in 2010, apparel industry & restaurant industry
Assignment Manager: Mr. Chen, 40 years old, received his L-1 visa in August 2015, came to work for the U.S. company in September, filed his EB-1C petition with the USCIS in February 2016, waited for almost 1 year, and received a Remediation Notice (RFE) in January 2017.

BACKGROUND

Tsang & Associates often receives difficult cases, such as those with denial experience and those who have previously received RFEs/NOIDs by themselves or other attorneys.

In February of this year, a Mr. Chen was referred to us by a friend and requested Mr. Zang’s team to help him complete his EB-1C (multinational executive immigration) USCIS Retroactive Filing (RFE). The case had many difficulties: the U.S. company with less than 10 people filed two EB-1C petitions, errors in the data submitted by previous attorneys, the company’s poor business condition, the risk of the Chinese company even going out of business, the client preparing the EB-1C petition by himself and the possible overstay problems he had to face, etc.

After the initial understanding of Mr. Chen’s case, Joseph Tsang knew that it would be a big challenge, and in the face of Mr. Chen’s repeated requests, Joseph Tsang decided to accept the assignment and do his best to accomplish his client’s goal. After 2 months of intensive preparation, the supplemental documents for this case (up to 250 pages) were submitted in late April and the case status was changed to approved on June 28.

Difficulties:
1. USCIS requires additional information to be submitted within 3 months (i.e., by the end of April 2017) and specifies that this is the maximum time limit for additional documents and no further grace period, i.e., the last opportunity.
It was already mid-February when Mr. Chen came to us. His L-1 and EB-1C applications were not handled by Mr. Zang’s attorney, and it was a challenge to clarify the data of the filed applications, determine the strategy and plan for the supplemental documents, prepare the supplemental documents, and explain the attorney for the supplemental documents in such a short period of time, which was mentally, physically, and staffing wise.

2. The Notice of Replacement (RFE) requires the addition of.
1) Mr. Chen’s employment certificates and records with Chinese and U.S. companies.
(2) Mr. Chen held a managerial or executive capacity position (Managerial or executive capacity), which could not be proven by the previous data.
(3) The equity relationship between the Chinese company and the U.S. company, where the previously submitted information was incorrect.
(4) Employee profile of the U.S. company, including positions, payroll, etc.
This is equivalent to re-certifying the EB-1C conditions in such a short period of time.

3. the U.S. company was founded in California in 2010 with less than 10 employees and filed two EB-1C petitions. the company had already helped the owner with his L-1 and EB-1C petitions. by the time we helped Mr. Chen, the company was in a much worse situation and had switched from operating in the apparel industry to the restaurant industry, and the company planned to continue laying off employees. We have talked in our previous L-1 lectures about how ordinary small restaurants do not usually need company executives.

4. The Chinese company was established in 2006 and is engaged in the logistics industry. The owner of the Chinese and U.S. company belongs to the same person, and since the owner came to the U.S. on his own for L-1, the business situation of the Chinese company is also deteriorating and is at risk of being closed down. It is quite difficult to apply for an EB-1C green card in this situation.

5. Mr. Chen’s own academic background is not relevant to his current management position, and he had no relevant work experience before joining the Chinese parent company, where he was promoted from a general employee to a senior executive in less than three years.

6. When Mr. Chen was applying for L-1, he had some conflicts with his original attorney and his boss had already applied for EB-1C before, so Mr. Chen’s EB-1C was made according to his boss’ documents and sent by his own company, which resulted in deviations in the preparation of documents and time estimation.

7. Mr. Chen’s L-1 expired in August 2016; he filed both his I-140 and I-485 applications in February 2016 and originally thought he would receive his green card in six months, so he did not apply for an L-1 extension. If denied this time, Mr. Chen will incur an overstay from the expiration date of August 2016. An overstay of more than 180 days will face a 3-year inadmissibility; an overstay of more than one year a 10-year inadmissibility. This will have a negative impact on any subsequent visas or immigration for him.

KEYS TO SUCCESS

1. Timing: The first and foremost thing to do is to grasp the timing. Within three days after Mr. Chen established his engagement, Mr. Zang formulated a strategy, a plan and a timetable for the filing, communicated with the client to confirm, and then proceeded strictly according to it. Within a week, we contacted the original lawyer and urged him to hand over the previous application materials of Mr. Chen and his boss as soon as possible, so that we could understand what had been submitted and determine the list of additional materials.

2. Faced with the fact that the business situation of the company was not as expected and the USCIS requested information about the employees of the company, Mr. Zang communicated with the company owner and the accountant several times to explore the conditions for the development of the company, the process of developing the company from the original garment industry to the current restaurant industry, the current situation of the restaurant opening, the current situation of the retained garment industry, the two industries from the restaurant and garment industries at the same time, and from the perspective of multi-industry operation. A clear organizational chart, employees (including full-time, half-time, and independent contractors), company financials, salary payments, and a detailed business plan are provided.

3. Mr. Chen’s work situation and position meets the requirements of Managerial or Executive: Based on the existing employees of the two companies, Mr. Chen’s work content in China and the U.S. companies were clarified, and the parts that meet the requirements of Managerial and Executive were sorted out separately, and experts were asked to make a favorable assessment of Mr. Chen’s qualifications. Mr. Chen’s qualifications were evaluated favorably. The difference between the two types of positions that meet the Managerial and Executive requirements was previously described in our lecture: How to Properly Understand the L-1A Multinational Manager/Executive Visa (I)?

4. Corporate relationship: Through the company meeting minutes, stock certificates, shareholder roster and other information to prove that the equity relationship between the two companies in China and the United States has met the EB-1C requirements, some mistakes in the previous submission data.

5. Team work: Before formally accepting the engagement, Mr. Zang’s team has done a lot of research to analyze the feasibility of the complementary documents, officially started, immediately divided the work, understood the situation of the Chinese company and the U.S. company, assisted in preparing the correct and necessary information and translation, and strictly followed the schedule progress in sections, and finally finished before the target time.

OUTCOME
The supplemental information was submitted on April 20, 2017 and approved on June 28, 2017. Mr. Chen was very excited when he learned of the hard-earned result and wrote to express his gratitude to Mr. Zang and his team for their hard work in these two months.

Lawyer Zang’s Comments:
EB-1C is available to immigrant multinational business executives who apply for the category, which emphasizes business management experience. There is no need to apply for a labor certification from the Department of Labor, but rather apply directly to USCIS without waiting for a quota and with a short processing time.

EB-1C requires that there must be two companies in the U.S. and overseas, a parent-subsidiary relationship; the overseas company can be the parent company and the U.S. company a subsidiary, or vice versa; either purchasing an existing U.S. business or forming a new company in the U.S. Managers or executives who meet this requirement must have worked for the company for at least one year within the last three years.

In response to the increasing number of inquiries about L-1 and EB-1C MNC executives, we did an online seminar: How to Properly Understand the L-1A MNC Manager/Executive Visa (I)? How to properly understand the L-1A MNC Manager/Executive Visa (II)? We welcome interested readers to learn more about it.

*To protect customer privacy, customer names are pseudonyms.