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EB-1C I-140 Petition Approval after Successful Response to RFE for Chinese General Manager and Child Care Center Petitioner in Cleveland Ohio

by JP Sarmiento on November 28, 2017

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CASE: I-140 (EB-1C Category: Executives and Managers of Multinational Organizations)

EMPLOYER: Child Care Center in Cleveland, OH

BENEFICIARY: Chinese

LOCATION: Cleveland, OH

Our client is a Chinese company which has its US subsidiary in the greater Cleveland area.  In 2016, our client acquired a child development center which offered child care services to children from the age of 6 weeks to 12 years old. They contacted our office in the middle of August 2017 to seek legal assistance for a possible L-1A extension for their employee. He came from China in 2016 with his L-1A visa to work as a General Manager. In September 2017, he successfully extended his L-1A status through our legal assistance.

He contacted our firm again in October 2017 and retained us to respond to a Request for Evidence for his I-140 EB1C petition, which was originally filed by a different attorney. In 2016, his current employer filed this I-140 petition under the EB1C category, but the USCIS issued a Request for Evidence. He wanted us to handle his case and retained our office on October 5, 2017.

An employer can petition for its foreign employee under INA § 203(b)(1)(C) if it demonstrates the following: (C) Certain multinational executives and managers – An alien is described in this subparagraph if the alien, in the 3 years preceding the time of the alien’s application for classification and admission into the United States under this subparagraph, has been employed for at least 1 year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and the alien seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.

According to the INA §101(a)(44), 8 U.S.C. §1101(a)(44) and 8 C.F.R §204.5(j)(2), “executive capacity” means an assignment in an organization in which the employee primarily: (1) Directs the management of the organization or a component or function; (2) Establishes goals and policies; (3) Exercise wide latitude in discretionary decision making; and (4) Receives only general supervision or direction from higher level executives, board of directors or stockholders.

Also, above the mentioned statutes define “managerial capacity” as an assignment with the organization in which the employee personally: (1) Manages the organization, department, subdivision, function or component; (2) Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization or department or subdivision of the organization; (3) Has authority to hire and fire or recommend personnel actions (if another directly supervises employees), or if no direct supervision, functions at a senior level; and (4) Exercises discretion over day-to-day operations of the activity or function.

After our office was retained, we prepared a thorough cover letter and obtained all necessary supporting documents from our client and the petitioning company. In our brief, we clearly demonstrated that our client met the requirements set forth in the INA §203(b)(1)(C).  First, the prospective U.S. employer (Petitioner-Company) has been doing business for at least 1 year.  Second, the prospective employer (Petitioner) in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed abroad.  Third, if the worker is already employed in the United States, he or she was employed outside the United States for at least 1 year in the 3 years preceding admission as a non-immigrant in an executive or managerial capacity by the petitioner or by its parent branch, subsidiary, or affiliate. Last, the alien is to be employed in the United States in a managerial or executive capacity.

The RFE letter thoroughly requested our client to demonstrate the qualifying relationship between the parent company in China and his current employer. Moreover, the USCIS requested our client to show whether he met the requirement of “one year managerial or executive position abroad.”

On the application package, we included a detailed job offer letter, employment verification letter from our client’s previous employer (parent company), and an organization chart.  Also, we included evidence regarding the relationship between the Petitioner-Company and its Parent company in China.  The evidence included a copy of the certificate of ownership, a copy of the articles of incorporation, a copy the business registration certificate, a copy of the tax records, etc.  Our office filed the Response to RFE on November 3, 2017 with 39 exhibits (A to MM). Eventually, on November 15, 2017, the I-140 petition was approved.  Now, our client can file the I-485 adjustment of status application based on the approved I-140 petition.

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