EB1C Multinational Manager. Appeal Denied

[harrisiqbal]

My case has been going on for more than 2 years so I'm not going to attempt explaining my entire situation as it will take a book worth of writing.

I am in the process of filing MTR for an APPEAL denial. Our original EB1C I-140/I-1485 decision was denied. We appealed the decision and it was denied.

I have a few questions regarding the denial.

Initially they denied the original application on nonsensical fabrications of fact that had nothing to do with our case (Even getting the job title/industry completely wrong).

So we filed an appeal and after more than a year got a denial last week.

In the denial letter they acknowledge their plethora of mistakes but still denied me on two basis.
1 -) Managerial Capacity
2 -) Qualifying Relationship

Regarding the first basis - They again misrepresented the facts and I will address this in the MTR (I'm going to be filing the motion myself, as I don't trust lawyers anymore due to horrible experiences)

The second basis is more of in the realm of point of law as opposed to point of facts (as in the first basis).

In the original denial, they stated that we failed to establish ownership of the foreign company [which is garbage due to the insane amount of evidence presented].
In the denial to the appeal, they say that yes yes we accept that the director might have "overlooked" some facts but that doesnt matter because we have found something that destroys your case (I'm paraphrasing ofcourse).

He continues to say that because the foreign company is a "SOLE PROPRIETORSHIP", a subsidiary / affiliate relationship cannot be established because it is not a "Legal Entity" > and he defines legal entity from this Black Law Dictionary.

Now this is confusing to me. My company has been on L1 visa for a couple of years then has been on the E-2 visa for the last 6 years getting SUCCESSFUL approvals based on this VERY "SOLE PROPRIETORSHIP" with the qualifying relationship being a non-issue. The US Company being a Corporation (with 51%+ of my ownership) and the Foreign company being owned by me 100% as a sole proprietorship.

So how can the officer say that since it is not a legal entity, blah blah, we have to deny you? In the face of numerous USCIS approvals of L1 / E2 ?

Is the officer accurate? My case has no chance because of this not being legal entity thing? Or is the officer mistaken?

If he is mistaken, can you please help me with a citation / or federal case law that I might use to rebut his argument?

Please spare me any comments about, GET A LAWYER!! Because I have TRIED THAT for the last 10 years and it has been less than satisfactory (Yes with multiple lawyers).

I applied for the E-2 extension myself last time and got an approval in 13 days without RFE. So I am going to be doing this myself. If anyone can help me, I will be forever grateful.

Thank You

It just makes me angry to think that, after all that money I have invested in this country and the new employment that I have created, they can throw out my case based on a stupid potential technicality. When there are scores of illegal immigrants swarming this country that get a path to citizenship!!!

[slowwin]

You have been getting bad Lawyers then. This is a complicated case, which needs to be dealt with by an attorney. Try to get nationally reputed ones like Murthy or Khanna.

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Originally Posted by harrisiqbal

My case has been going on for more than 2 years so I'm not going to attempt explaining my entire situation as it will take a book worth of writing.

I am in the process of filing MTR for an APPEAL denial. Our original EB1C I-140/I-1485 decision was denied. We appealed the decision and it was denied.

I have a few questions regarding the denial.

Initially they denied the original application on nonsensical fabrications of fact that had nothing to do with our case (Even getting the job title/industry completely wrong).

So we filed an appeal and after more than a year got a denial last week.

In the denial letter they acknowledge their plethora of mistakes but still denied me on two basis.
1 -) Managerial Capacity
2 -) Qualifying Relationship

Regarding the first basis - They again misrepresented the facts and I will address this in the MTR (I'm going to be filing the motion myself, as I don't trust lawyers anymore due to horrible experiences)

The second basis is more of in the realm of point of law as opposed to point of facts (as in the first basis).

In the original denial, they stated that we failed to establish ownership of the foreign company [which is garbage due to the insane amount of evidence presented].
In the denial to the appeal, they say that yes yes we accept that the director might have "overlooked" some facts but that doesnt matter because we have found something that destroys your case (I'm paraphrasing ofcourse).

He continues to say that because the foreign company is a "SOLE PROPRIETORSHIP", a subsidiary / affiliate relationship cannot be established because it is not a "Legal Entity" > and he defines legal entity from this Black Law Dictionary.

Now this is confusing to me. My company has been on L1 visa for a couple of years then has been on the E-2 visa for the last 6 years getting SUCCESSFUL approvals based on this VERY "SOLE PROPRIETORSHIP" with the qualifying relationship being a non-issue. The US Company being a Corporation (with 51%+ of my ownership) and the Foreign company being owned by me 100% as a sole proprietorship.

So how can the officer say that since it is not a legal entity, blah blah, we have to deny you? In the face of numerous USCIS approvals of L1 / E2 ?




Is the officer accurate? My case has no chance because of this not being legal entity thing? Or is the officer mistaken?

If he is mistaken, can you please help me with a citation / or federal case law that I might use to rebut his argument?

Please spare me any comments about, GET A LAWYER!! Because I have TRIED THAT for the last 10 years and it has been less than satisfactory (Yes with multiple lawyers).

I applied for the E-2 extension myself last time and got an approval in 13 days without RFE. So I am going to be doing this myself. If anyone can help me, I will be forever grateful.

Thank You

It just makes me angry to think that, after all that money I have invested in this country and the new employment that I have created, they can throw out my case based on a stupid potential technicality. When there are scores of illegal immigrants swarming this country that get a path to citizenship!!!

[harrisiqbal]

I understand your perspective but okay let me put it this way.

For any lawyers out there or perhaps people knowledgeable in this particular field >>

This is the only thing i need answered:

If someone has a foreign company (Sole Proprietorship) and that person expands his business in the US by creating a new company and incorporating it (S Corp).

Legally speaking ||

Can a qualifying relationship be claimed between the two entities even if the parent company (not in US) is a SOLE Proprietorship?

Question seems easy enough...

Thanks for any help

[slowwin]

I reiterate again. This is too complicated for non specialists. consult specialist buissnes immigrant attorney whose speciality is E1C.

Originally Posted by harrisiqbal

I understand your perspective but okay let me put it this way.

For any lawyers out there or perhaps people knowledgeable in this particular field >>

This is the only thing i need answered:

If someone has a foreign company (Sole Proprietorship) and that person expands his business in the US by creating a new company and incorporating it (S Corp).

Legally speaking ||

Can a qualifying relationship be claimed between the two entities even if the parent company (not in US) is a SOLE Proprietorship?

Question seems easy enough...

Thanks for any help

[ivgclive]

Originally Posted by harrisiqbal

In the denial letter they acknowledge their plethora of mistakes but still denied me on two basis.
1 -) Managerial Capacity
2 -) Qualifying Relationship

1 -) Managerial Capacity

What is your background. Degree & experience...

[sorcerer666]

Originally Posted by harrisiqbal

Please spare me any comments about, GET A LAWYER!! Because I have TRIED THAT for the last 10 years and it has been less than satisfactory (Yes with multiple lawyers).

It just makes me angry to think that, after all that money I have invested in this country and the new employment that I have created, they can throw out my case based on a stupid potential technicality. When there are scores of illegal immigrants swarming this country that get a path to citizenship!!!

From these two points itself, as strange and weird as this system is, if you can't beat it, adopt to it
1). 10 years is an awfully long time for EB-1, would you have been better off with EB-2 to avoid this scrutiny and technicalities??
2). Would you be eligible for EB-5, investor quota??

Either ways, there would be very few people in this forum who would be able to help you!

[harrisiqbal]

Sorry you misunderstood:

10 years is for my whole immigration battle starting with L-1 to E2 to EB1-C not just for EB1-C

To the person who asked for the information about capacity:

That is not really an issue, the officer actually misrepresented the facts given to him but here goes

I have a business bachelors degree and I went on straight into creating my business after that.

After getting my BBA, I started a business and worked in it for 25 years (This is the foreign entity). The business was steel import/export, We were wholesalers and suppliers of TIn Mill Steel Products. I moved to the US in the hopes that I can give my children a better future and expand my business ventures here.

I established a business here and have been operating it for the past 10 years. We applied for the EB1-C 2 years ago. So 35 years of active business experience should not be an issue.

What the guy objected on was that I allegedly spend most of my time doing day to day non-qualifying tasks using a reference that i had given in terms of Percentage breakdown of my job duties.

He misquoted the reference completely, The reference said, 20% of my time.... is spend... expanding the business venture, implementing policy changes as required, and hiring/firing employees. (I'm highly simplying it).

He said that because you spend 20% of your time hiring and firing employees and there were only a few personnel changed in the past 4 years. USCIS is forced to believe that the lower level employees are not relieving me of lower level job duties.

He obviously was too blind to see the other 2 major things that i included in the 20% with hiring and firing being only 5% of my time out of the year.

So I'm not worried about that stupid mistake on USCIS part.

[cops8800]

Hello ,everyone

I am b.com grad & MCSE certified, with study i started Proprietary firm in 2000 in India,IT-software dev+Hardware supply/annual maintain contract,IT eduction services,Accounting-Multiple services which gradually expand at present full-time highly educated IT 16+&4admin professional + 2 for office work . up to June 2008 i operated this as owner all dept Head after mid 2008 then till date i gave power of attorney to my manager for operate,even before 10months to came usa i bought my own office premises and relocate from rental space , i am indirectly managing from here as new technology helped a lot, i came here as F2 visa(student dependent) because to support my wife -wants to study in usa and she took 4 yrs course but for two years (fast track) , time of visa -same firm mentioned in visa form with new office address in interview they checked all docs from IT papers to supplier and all stuff , my business gradually improved in last 5yr. that
presently i am in usa from June 2008 to till date , last month july 2011 Us based company and i had deal - as they are in business form 4 +yrs and IT consulting and services they are doing very good employed 18+ it professional on H1 ,4 US citizen ,3 work in india for this company on direct pay roll,they wants to expand they bought my Indian firm 60% ownership (not office premises ownership) and did all transaction officially also we hired in India more 2 people for marketing in usa from India for us company's services , i got info that i am eligible for work and file paper here as if i wish to work for Usa company if they hire me as executive level , after discussion with company's ceo , he told me that he wants to hire some 1 for same position and also willing to hire me with prevailing wage rates as per that position, so on this all grounds what you all suggest ,as i tried to check online about this , i got this very helpful platform so,please advise me what is best options and how you all can guide me for this Category.