L-1A and RFE for Previously Denied Client
- Client: Ms. Jay
- Business: Import and Export of Fishing Supplies
- Nationality: China
- Position: General Manager
- Number of Employees: 2
- Year Incorporated: 1983
- The beneficiary had a previously denied L-1A petition.
- Company had only 2 employees.
- Petitioning US Company employees were performing only basic tasks relating to imports and exports.
- Beneficiary held a low level of education
- Beneficiaries’ salaries and positions in the US and China were very low.
Requests for Evidence are common, though often mishandled by other law firms and petitioners, Many consider denial of a visa application to be the end of the road for working in the United States. At Tsang & Associates, we see this as a challenge worth overcoming. Ms. Jay came to us at Tsang and Associates seeking assistance in filing for an L-1A visa. However, the unique challenge in this case was that her previous L-1A petition, filed by another office, had been denied. She was not confident that a second petition could be won, but our team felt that with new evidence and stronger arguments her case could be won. The reason for the denial had been because the Service concluded there was a lack of evidence showing the beneficiary would be employed in a managerial or executive capacity, especially concerning the “beneficiary’s subordinate employees”. In other words, the Service had concluded that the company did not have enough employees to justify an L-1A transfer. Therefore, the unique challenge in this case was to establish that a company as small as this needed an L-1 transferee. We filed the case in December 2016 and gained approval in January 2017.
KEYS TO SUCCESS
How we proved Ms. Jay’s proposed duties in the U.S. Company were managerial or executive
First, the ability to prove that our client was a manager and an executive was complicated by the fact that the company only had two employees. Generally, USCIS would consider managerial and executive duties to be linked to the number of employees overseen. A low number of employees would indicate, in their thinking, a dearth of managerial and executive responsibilities. Our team was able to demonstrate that although the company was small, it was growing in terms of company employees. The first step was to demonstrate that the company had recently hired three new employees, and that Ms. Jay had been instrumental in leading that effort. In addition to this, it is important to point out not merely where the company is in terms of staffing, but also where it is going. In this regard, our team was able to help draft documents, such as company letters and a new organizational chart that demonstrated that the company was planning on hiring additional workers, with eight new workers by 2020. This was a critical point, while the company was small, we were able to demonstrate that it would grow in the years to come under Ms. Jay’s leadership, and that the hiring of new employees was an essential part of her leadership. Next, it was important to emphasize aspects of the company aside from the total number of employees, such as gross sales, which in the previous year had been over $16 million. We demonstrated that her financial business experience was exactly what was needed to continue this record of success.
Additionally, we were sure to explain the details of Ms. Jay’s executive capacities. 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 Ms. Jay’s role, she would be making all of the strategies of the marketing plan, making the decisions for the company, and establishing as well as communicating the goals and vision of the company to her subordinates. She also explained she would have full authority to hire and fire. We showed that as General Manager, Ms. Jay had the authority to exercise discretion over marketing operations, activities, and functions of the company. She was instrumental in managing the company’s complex marketing initiatives. Further we provided a percentage breakdown of all of her proposed work at the US company. In order to establish that she was a manager and executive, we also went into detail on her subordinates. This was more difficult, given the simplicity of their responsibilities. However, we were able to explain how the tasks of the employees were both essential for the operation of the business
As a successful L-1A also requires that one be a manager and executive at an affiliated foreign office, we provided similar documentation explaining her role at the Chinese parent company, and drafted company letters and organizational charts to establish this. Finally, as this case had previously been denied, we were very careful to include a section detailing the consequences for denial. Here we argued that the denial of this case would bring about financial hardship for the company and indeed lead to its collapse. We argued that this was so because Ms. Jay was the essential connection between the two companies and the main conduit of financial and business information between them. This is a key argument that other law firms often miss. It is not enough of the time to argue that We established this by producing company letters from the companies attesting to this.
How we proved the control relationship between U.S. Company and Chinese Company
Another potential problem was the relationship between the company in the US and the company, namely that there was a qualifying relationship between the two. We 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.” This was another complex aspect of the case. The founder of the Chinese company formed it separately, and then only later became the Chinese subsidiary of the American corporation. In order to demonstrate this relationship, we indicated with the U.S. Company’s Articles of Incorporation and tax returns of the previous three years, that the company is indeed the US parent of the Chinese company. We also produced company minutes that confirmed the ownership of the corporations, thus establishing the beneficiary There was a challenge in that there was no simple parent-subsidiary relationship, but rather both companies were owned by a single individual. We provided company documents proving this and we drafted company letters and organizational charts. Thus, we established that the U.S. Company was therefore completely owned by the overarching China Company, fulfilling the control relationship requirement.
We filed for the L-1A extension in December 2016 and gained approval within a month, allowing her to come to the United States to work for the US subsidiary. Our client was tremendously happy with the fact that we were able to win this case in such a short period of time. This brought her a tremendous amount of satisfaction, especially considering that she had experienced a prior denial in her case. We never stopped believing in her and we were committed to winning her second try.