L-1 for Sales Manager

Year: November 2019
Nationality: Chinese
Beneficiary: Mr. Kim
Company Industry: Tire manufacturing
China Company: Established in 2000, 200 employees
US company: founded in California in 2014, 8 employees
Beneficiary position: General Manager of a US company

Mr. Kim’s parent company has been established in China for 20 years, specializing in the tire manufacturing industry, and has opened several branches around the world in the past 10 years. 2014, the parent company intends to further expand the market and set up a brand new branch in the U.S.

Mr. Kim is the third general manager of the parent company to be reassigned to the United States. Since the implementation of Trump’s new immigration policy, all kinds of immigrants and non-immigrants are being scrutinized more and more strictly, and the parent company failed to apply for L-1 extension for the second general manager last year. As the position of general manager was left vacant, the leaders of the parent company were very anxious and hoped that Mr. Jin could pass the application as soon as possible and go to the U.S. to take over the branch as soon as possible. Through a friend’s referral, he found Tsang & Associates to help Mr. Kim apply as soon as possible.

BACKGROUND
1. small size and slow growth of U.S. companies.
The US company has been established for 6 years and the number of staff has been hovering between 6 and 8, the function is similar to a sales department of a Chinese company in the US, the business scope and model has not changed since its establishment and has not continued to develop and expand according to the initial business plan.

2. Encounter the “first-line supervisor” problem.
Mr. Kim himself held the position of sales manager at the parent company and was only in the middle management level of the department in the organization chart. Not only does he have multiple levels of supervisors above him, but he also has only four salespeople under him. This is a far cry from what USCIS defines as an “executive” and can easily be questioned by immigration officers as a first-line supervisor. The L-1 executive position cannot be a first-line supervisor. If the beneficiary is a first-line supervisor, he or she must prove that the employees under his or her supervision are professionals (such as members of professional associations, such as engineers, architects, lawyers, etc., or jobs of a professional nature that require at least a bachelor’s degree to perform). Obviously, the four salespeople under Mr. Kim’s supervision do not fall within the definition of “professional” as defined by USCIS.

3. Difficulty in demonstrating “Managerial or Executive Executive Competence”.
Since the company was unaware of the significant change in immigration policy, when preparing the L-1 extension for the second general manager, the company prepared the L-1 extension based on the experience and documents of the previous L-1 petition, which led to the failure of the extension. In the last denial notice, the immigration officer clearly pointed out that the documents provided could not prove the “Managerial or Executive ability”, and that the original general manager was only a sales manager, and that the USCIS did not judge whether the L-1 executive was an executive by the title of the position alone, but by the multiple application documents. The USCIS did not judge the L-1 executive from the title of the position alone, but from multiple petition documents.

According to the regulations, L-1 requires managerial competence to “manage his or her organization, department or subdivision, supervise primarily other employees in the practice, or manage a significant part of the company”, and administrative competence to “direct the organization or major department”, “exercise broad discretion in making decisions within the department”, and “be subject to the supervision of senior management, the board of directors, and shareholders”. Mr. Kim’s administrative capacity refers to “direct direction of the organization or major departments,” “resume objectives and systems within the department,” “exercise broad and free decision-making ability,” and “be supervised and managed by senior management, the board of directors, and shareholders. However, for this application, Mr. Kim continued to have difficulty providing specific data (e.g., work schedules, project plans, reports of subordinates’ work, etc.) to prove his executive position in China. To add insult to injury, the U.S. company also had no specific development plan or arrangement for Mr. Jin’s arrival, and provided us with the same documents as those previously rejected by the immigration officer. With the many difficulties and doubts mentioned above, the U.S. company entrusted the case to Tsang & Associates to represent the application.

OUTCOME
Tsang & Associates reworked a different L-1 petition for Mr. Kim’s case than their original one. Mr. Kim filed his L-1 petition in November 2019, opted for accelerated processing, and received an email from USCIS two weeks later informing him that it was approved and valid for two years! Immediately afterwards, the company also received a paper I-797 approval notice. Both the company and Mr. Kim were very happy to learn the good news and sincerely thanked Tsang & Associates for helping Mr. Kim to get his L-1 visa and take over the branch office in the U.S. despite such a difficult application environment.

*To protect customer privacy, customer names are pseudonyms.