Uber Driver Defies the Odds and Receives EB-1C Executive Green Card

Year: March 2020
Nationality: Chinese
Applicant: Mr. Wu
Company Industry: Apparel Food
Position applied for: General Manager of US company
Petition Category: EB-1C Corporate Executive

Application timeline:
01/2016 Filing of I-140 & I-485 applications.
01/2017 Receipt of I-140 RFE Retroactive Notice.
04/2017 Responding to I-140 RFE supplemental requirements.
07/2017 I-140 approved.
04/2018 USCIS Issues I-485 RFE Retroactive Notification.
10/2018 USCIS reissues the I-485 RFE Notice of Retroactive Filing.
02/2019 USCIS Issues Third I-485 RFE Retroactive Notice.
08/2019 EB-1C petition interview, post-interview USCIS again requests additional documents.
09/2019 Responding to requests for additional documents for interviews.
03/2020 I-485 was approved and green card was received within 30 days.

BACKGROUND
Mr. Wu worked in a domestic apparel company as a sales manager since 2011 and then promoted to vice president, in 2014 the U.S. company was established, the company applied for an L-1A visa for Mr. Wu was sent to the U.S. as general manager, and in early 2016 filed an EB-1C (I-140 & I-485) application for him. However, Mr. Wu’s poor English was not familiar with the U.S. market, the U.S. apparel A company fell into operational difficulties, and in 2017 began to seek transformation, and finally merged with another restaurant B company, but because it was a cross-line operation, the restaurant situation was not optimistic, Mr. Wu got his EAD work card and had to temporarily find another career — to drive an Uber in the U.S. until the I-485 approval to obtain a green card.

1. Business management capability of executives
Mr. Wu was stationed in the U.S. as an L-1 executive and applied for EB-1C executive immigration, but turned in a poor report card. The original apparel A company laid off 2-3 employees during the L-1 period from the initial 10, and then merged into the restaurant business, but it was barely operating. Regardless of the apparel industry or the restaurant industry, Mr. Wu’s leadership and management did not work significantly. How can Mr. Wu prove that he meets the requirements for EB-1C multinational managerial executives?

The USCIS focused on questioning Mr. Wu’s work experience in China and his executive responsibilities in managing his company after coming to the United States in the I-140 supplemental notice.

2. Changing employers midway & two company status
As the business and employees of the former apparel company A decreased drastically, they were no longer qualified to continue to hire EB-1C executives; after merging with restaurant company B, company B continued to file EB-1C applications for Mr. Wu; because of the change of employer, this part was the focus of the I-485 supplemental documents, which were supplemented 3 times, and the supplemental notices were still issued after the interview. One of the requests from USCIS was to supplement the payroll tax returns of employees of companies A and B from 2016 to the present. From there, we can see that Company A has only 3 employees left in 2018, and Mr. Wu’s salary is only $2500/month, no different from the basic staff. Restaurant B company situation is also not optimistic, late only 5 employees, keep the minimum salary level issued, the store only one left.

Tsang & Associates reminds:
Under the AC21 portability Act, it is possible to change the applicant employer if the following conditions are met.
1) I-140 approved or approvable (approvable).
2) I-485 adjustment of status applications pending for more than 180 days.
3) The new job position is the same or similar to the previous job.

As to what constitutes the same or similar job position, USCIS will make a combination of determinations from
1) The Bureau of Labor Statistics’ Standard Occupational Classification (SOC) system.
2) Job duties of both positions.
3) Education, skills, training, licenses, etc. qualifications required for each position.
4) Salary of the two positions.
5) and other relevant proofs.

3. Work experience.
Mr. Wu came to the U.S. on an L-1 visa and did not extend his L-1 after filing I-140 & I-485 , so he has been working with a work card (EAD) after his L-1 expired and started driving an Uber online car full-time in 2019. Mr. Wu’s work experience tracked 4 years from General Manager of a clothing company – restaurant manager – Uber driver for more than a year. How to convince USCIS that Mr. Wu still has the ability to manage restaurant B company after getting his green card?

All of these areas are difficult.

KEYS TO SUCCESS
1. Find the right lawyer according to the needs of the application
After receiving the I-140 filing notice, the original I-140 filing attorney requested the company to provide information according to the content of the filing notice, but at that time, the company’s situation was already bad and many information could not be provided. Mr. Wu was anxious and was referred to Tsang & Associates by his friends. He tried to start from formulating a replacement strategy and, after learning about the experience of Tsang & Associates’ team and their advice on his situation, he felt that he could trust our lawyers and entrusted them to complete the replacement. Mr. Wu and his company did not keep all the original I-140 application documents with the original attorney. In order to understand the details of the petition, Joseph Tsang contacted the original attorney directly and requested to transfer the I-140 case to Tsang & Associates. After receiving the request, we consulted with the documents already filed and developed a strategy on how to strengthen the I-140 in response to the filing requirements.

2. Professional attorneys at critical times
Mr. Wu originally thought that the I-485 application was simply a matter of filling out a form and submitting some basic personal data, so the I-485 application was prepared by himself. Unexpectedly, he was asked to file a new I-485 application one after another, and received the third notice of filing a new I-485 application. Mr. Wu finally realized the seriousness and complexity of the problem and went ahead and asked Tsang & Associates to complete a supplemental filing. In this supplement, Tsang & Associates helped him explain the change of employer, the relationship between the old and new employer, and why the new employer met the “I-140 portability” requirement.

3. Pre-interview counseling and interview attorney accompaniment
After waiting for more than 3 years, Mr. Wu finally received his I-485 interview notice. Having learned from his previous repeated filings, Mr. Wu immediately contacted us to request an attorney to accompany him to the USCIS interview. Our team arranged a special attorney for Mr. Wu to appear before the USCIS, and arranged 3 counseling sessions before the interview, from preparing the interview materials, such as the explanation of the relationship between the old and new employers, preparing the documents of the two companies, the documents of Mr. Wu’s legal stay and work in the US, familiarizing with the materials, the reasons & responses of the previous filings, the focus of the interview, the questions that may be asked and how to answer, etc.

OUTCOME

There was no unexpected situation on the day of the interview, but instead of an immediate approval after the interview, we received another RFE, so we quickly prepared and submitted a supplemental document within two weeks. After several reminders, we finally received the I-485 approval after 6 months.

An accompanying attorney will play a critical role when conducting the I-485 interview within the United States. Before the interview, the attorney will work with you to straighten out all of your files, rehearse interview questions beforehand, such as why you are eligible for immigration, what you will be doing or the company you will be starting, previous employment and education, entry into the U.S., maintaining legal status, and explain the key points for the application package. Because it is often complicated to know how to meet the EB immigration requirements, we help organize the key points and key information and explain how the entire interview process will work so that the applicant has a clear understanding. Throughout the interview process, the attorney plays the role of a keen listener and observer; he or she can call off some untimely questions on the spot and approach the USCIS supervisor to ensure that the applicant is not left in a passive and vulnerable position during the process to the greatest extent possible.

If there are any questions during the interview, the lawyer can also communicate directly with the interviewer again after the interview. Therefore, if it is a difficult case, it is very necessary and meaningful to hire a professional lawyer during the interview.

*To protect customer privacy, customer names are pseudonyms.