Background

Design India (D-India) is an Indian Engineering Design firm providing end-to-end solutions for the building design industry. With a state-of-the art studio in Pune, D-India is engaged in providing Computer Aided Design (CAD) and Building Information Modeling (BIM) services to international architecture and engineering firms in India. After establishing successful operations in India, D-India’s senior management saw it profitable to enter the U.S. markets to serve U.S. clients.

Choosing an appropriate Market Entry Strategy – The Considerations

When D-India approached VisaPro seeking support to realize their goals of entering the U.S. market, our experts thoroughly analyzed their situation and needs. While eager about the lucrative opportunities that the U.S. market provided, D-India was particularly anxious about safeguarding its interests against any startup risks. They wanted to start operations at the earliest and preferred to enter the market with a client list ready to go.

After analyzing D-India’s need and requirements, our experts suggested that D-India use acquisition of another company as an appropriate market entry strategy. Acquiring an entity already in operation in the U.S. would enable D-India to start its operations from day one and serve the already existing clients of the U.S. company being acquired. An existing company would present D-India with a platform to launch their services into the U.S. market using the infrastructure, network and contacts already built-up by the existing U.S. company.

Acquiring a U.S. company– The Challenges

While acquisition of an existing company was identified as the most suitable market entry strategy for D-India, the process of acquiring a U.S. company is never simple or easy. The process of acquiring a company involves consideration of numerous parameters – from identification of the right company, to correct valuation, tax implications, and finally, appropriate documentation to safeguard oneself from undiscovered liabilities and undesirable consequences.

Acquiring an U.S. company– The Implementation

To help D-India accomplish its objectives of acquiring a suitable U.S. entity and profitably enter the U.S. market, our experts supported D-India diligently through every stage of the acquisition process. Our experts helped D-India identify a suitable business for acquisition in the U.S. and aided D-India in conducting proper due-diligence to carefully evaluate the company. VisaPro’s experts also advised the company during the negotiations process to arrive at a mutually beneficial arrangement and supported D-India with all the necessary formalities to complete the transaction successfully. Thus, our experts ensured that D-India was thoroughly supported during the entire process of acquisition.

Off-shore Business in India driven by the U.S. company

A key advantage that D-India witnessed following the acquisition was in the flow of off-shore business to the company in India, primarily driven by the clients and business of the U.S. company. Following the acquisition, D-India had access to established U.S.-based clientele and a significant order-book, enabling it to outsource much of the work to its off-shore center in India. Having an off-shore team in India develop a bulk of the work resulted in significant savings for D-India allowing it to maintain a competitive advantage in pricing by passing on part of the benefit to its clients, ensuring success and profitability of both the Indian and the U.S. operations.

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Background

Pharma India (P-India) is a large Indian pharmaceutical company developing and manufacturing innovative and affordable products for both the domestic and international markets. To facilitate global operations, P-India has subsidiaries in the U.S. and Europe. Its U.S. subsidiary, Pharma-USA (P-USA), is actively engaged in successfully marketing its products throughout the North American market.

As part of its expansion plans, P-India identified a lucrative market opportunity for “Active Pharmaceutical Ingredients” and “Solid Oral Dosage Forms” in the North American market and decided to set up a new division in the U.S. under its subsidiary, P-USA. P-India’s management team had determined that the creation of the new division at P-USA would lead to significant growth opportunities for the company.

Transferring a P-India Executive to P-USA to manage the new division - The Challenges

To manage and develop the new division being set-up in the U.S., P-USA and P-India needed to transfer a senior manager at P-India who had significant managerial experience as well as advanced knowledge of their organization’s products, processes, business priorities, marketing procedures and operations from India to the U.S. To this extent, P-USA identified an Assistant General Manager - Business Development at P-India to come to the U.S. and work as its Senior Regional Business Manager. The Senior Regional Business Manager would manage and develop its new division for marketing and distributing its APIs and Solid Oral Dosage Forms in the North American marketplace and securing strategic partnerships and alliances with U.S. based pharmaceuticals companies.

When P-USA approached VisaPro seeking help to transfer the identified executive from P-India to P-USA, VisaPro attorneys quickly reviewed the circumstances to identify the challenges the situation presented. The transfer of an employee under an L-1 to manage a new division raised some issues. While both P-India and P-USA employed a considerable number of employees and had significant operations and revenue, P-USA did not have a significant number of employees working in the new division. Thus, the task of establishing a managerial or executive role for the proposed employee in his U.S. role became challenging.

Transferring a P-India Executive to P-USA to manage the new division- Strategy and Implementation

VisaPro’s attorneys worked closely with P-USA to gather facts that would clearly articulate the managerial and executive nature of proposed transferee’s role in the U.S. To help overcome the absence of a significant number of employees in the new division, VisaPro’s attorneys adopted a strategy to utilize the strength of the existing operations of both P-India and P-USA and highlight how the new division is envisioned by the large entities as a significant step in their expansion plans. Based on the information gathered, VisaPro helped P-USA successfully prepare a convincing petition, underlining how the nature of duties to be performed by the transferee in the U.S. is managerial and executive in nature, especially the importance of overseeing the strategic business development and transactional initiatives, including evaluation of business strategies, and significance of having a senior executive from India to set up and manage the new division on its way to profitability and growth. The comprehensive package prepared by VisaPro’s attorneys addressed every possible query that could come up, resulting in the identified senior executive from P-India successfully obtaining an L-1A visa to come to the U.S. and manage P-USA’s new division.

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Background

Engineering USA (E-USA) is a U.S. based company which delivers custom solutions for customers’ industrial installation demands. They support utility power plants, cement plants, steel mills, manufacturing units, mining, and subway operators with their industrial installation solutions. Having delivered critical solutions to clients for more than 30 years, the company is recognized and competes worldwide as an industry leader.

To increase their global presence and to provide cost effective and timely solutions to their clients in the Asia-Pacific region, E-USA wanted to set-up operations in India, partnering with a local entity. They planned to set up a plant in India that would mirror their U.S. operations and produce engineering equipment based on the design principles and methods perfected by them over the years.

Setting up Joint-Operations in India

To help E-USA accomplish its objectives of setting up a profitable plant in India, the VisaPro experts set out to assist E-USA identify an Indian entity that had the capabilities and know-how that were essential for E-USA to successfully set up joint operations in India. Once the suitable Indian entity was found, our experts helped E-USA finalize arrangements with the company and help establish joint-operations in India under the name Engineering-India (E-India).

Training E-India Employees in the U.S.

As planned, the E-India plant mirrored the U.S. operations of E-USA. It was therefore necessary that employees of E-India plant be well-trained in the proprietary manufacturing processes and procedures employed by E-USA, including those in some highly specialized knowledge areas that were critical to designing and manufacturing their equipment. E-USA realized it would need to bring certain employees of E-India to the U.S. to train at the U.S. facility.

E-USA approached VisaPro to find out if there was a way to accomplish the above knowing that there would be visa issues involved. VisaPro’s attorneys, upon considering all the involved, concluded that the H-3 Trainee visa would be most suited for E-USA to bring employees of E-India to the U.S. to enable them participate in a training program involving the practices and processes employed by the U.S. company.

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Background

Logistics-India’ (L-India) is a diversified Indian transportation and logistics company providing a whole range of transportation and logistics services designed to meet the demands of their customers.

Within 6 years of incorporating in India, L-India was already a highly profitable business having set up and created a nationwide network of offices in India. At this point, the company saw great opportunities in expanding its operations into international markets. As a first step, L-India wanted to open offices in the U.S. to better serve their existing clients and expand from there.

Setting up the office

To help realize their company’s expansion plans, VisaPro’s expert team first helped L-India set-up its 100% owned branch office in the U.S., ‘Logistics-US’ (L-US). In setting up the U.S. company, VisaPro helped L-US locate an office premises and conduct preliminary regulatory compliance work. Once the branch office was physically established, VisaPro helped L-US file for and obtain the necessary licenses and other official documents to start and conduct a fully-owned branch office of a foreign corporation in the U.S. With all the necessary paperwork in place, the remaining major challenge left for L-US was to figure out how to manage and guide the new operations in the U.S.

Helping the CEO from L-India go and work at L-US

For effective implementation of the business and marketing plans envisaged for the U.S. office, L-US wanted the co-founder and Chief Executive Officer (CEO) of L-India to come to the U.S. and fill the vacant position of President at least until the U.S. operations were stabilized.

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Setting Up a U.S. Subsidiary

As ABC-India wanted to regularly put shows on in the U.S., the first step that VisaPro took was assisting ABC-India establish a U.S. subsidiary, ABC, Inc. (ABC-US).

Immediately after the company formation in the U.S. was complete, ABC-US identified a profitable opportunity in arranging and organizing a series of live shows in the U.S. featuring comedians and performing artists from India. The live program was based on a successful and highly popular Indian television show. The television show featured popular comedians from the television industry who were household names in India, supported by a regular musician, coming up with creative acts and competing against each other to entertain the audience. The comedians, who had built a rapport with and following among the average television viewers in India, regularly portrayed a selection of characters that they came to be uniquely identified with. In response to the huge success of the television show, live performances of the group were organized in many cities across India, which also became very successful. ABC-US saw an exciting opportunity in bringing the show and its talented performers to the U.S. and having them perform in live shows there. ABC-US wanted to feature performances at various venues in 10 U.S. cities, starring the same popular comedians and performers from television show and stage shows in India.

Enabling the Performing Artists from India to travel to the U.S. – The Challenges

With most of the arrangements for organizing the show having been made, the last and major challenge left for ABC-US, which was then a relatively new entity in the U.S., was in ensuring that all the performing artists could travel to and perform in the U.S. Engaging closely with ABC-US, VisasPro’s attorneys began to work diligently to devise an effective strategy for the client.

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Background

Trade-India (T-India), based in Goa, is an international trading corporation engaged in the trading of various forms of metal scrap and is also a supplier of high quality steel to mills and foundries throughout the world. After building successful operations that spanned the globe, T-India wanted to set-up operations in the U.S. in order to source scrap metal from the U.S. T-India owners surmised that a physical presence in U.S. would significantly enhance their profitability, while strengthening their credibility and reputation among international buyers. Having an entity in the U.S. would also facilitate their expansion into other sectors effectively.

Setting Up a U.S. Affiliate

When T-India approached VisaPro detailing its plans and seeking assistance, VisaPro’s team analyzed the company’s situation. First, VisaPro’s team helped T-India incorporate a U.S. entity, Trade–USA (T-USA). While incorporating the U.S. entity, our experts made sure that T-India and T-USA would be “affiliates” so as to facilitate the transfer of employees from T-India to T-USA on the L-1 visa. Our experts also helped T-USA secure an office premises and complete preliminary formalities to bring T-USA into existence.

The Challenges

With T-USA having been established as an affiliate of T-India in the U.S., the next task before T-USA was to ensure the successful transfer of an identified employee from T-India to T-USA in order to start up operations. VisaPro’s attorneys decided that a New Office L-1 would be the appropriate visa category that would enable T-USA to accomplish their desired goals. T-USA/T-India decided that the Senior Vice-President - International Business Development of T-India should be transferred to T-USA to act as Chief Operations Officer (COO) on a New Office L-1. However, successfully obtaining a New Office L-1 for the identified T-India employee, in this situation, brought up many challenges.

To be eligible to seek an L-1A visa, the employee being transferred must have been engaged as an Executive or Manager in the overseas entity for a period of at least one year out of the past 3 years. And, generally, USCIS utilizes the number of people reporting to the beneficiary, as demonstrated by the organizational structure, in establishing the executive or managerial nature of the duties carried on by the beneficiary. Companies engaged in trading typically are not manpower intensive and hence face challenges with immigration, especially for the transfer of executives/managers. This necessitates special analysis and strategic planning to address these matters in the petition filing. Hence, establishing the executive or managerial nature of the identified T-India employee’s role became a significant challenge to overcome. And, this was in addition to all the “normal” challenges inherent in the L-1 visa process.

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Challenges while seeking Extension of Stay on a New Office L-1:

The New Office L-1 is generally granted for an initial period of one year in order to enable the foreign national Executive or Manager to come to the U.S. and establish operations. To seek an extension of stay beyond the first year while on the New Office L-1, the Executive or Manager must show that during the first year the operations in the U.S. the entity had grown sufficiently to a level that justified the continued presence of the foreign national Executive or Manager, to discharge Executive or Managerial functions in the U.S.

One year is not 12 months!

While theoretically the New Office L-1 provides a foreign national Executive or Manager one year to come to the U.S, as a practical matter, an Executive or Manager may find that the time actually available to him to accomplish all that required is considerably less than one year. This is due to many factors. Once the petition is approved, the Executive must obtain an L-1 visa at an American Consulate or Embassy to be able to travel to the U.S. and seek admission on the L-1 visa. The Executive or Manager must then travel to the U.S. and start building the operations. Then, in order to remain in the U.S. to continue to build the business, the necessary extension petition must be filed at least a few months before the period of one year granted comes to an end. All this and more mean that the Executive or Manager has considerably less than one year to accomplish the task of growing operations to a level that justifies his continued presence and enable him or her continue to remain in the U.S. to manage U.S. operations.

To facilitate an extension of stay of T-US’s CEO on the New Office L-1 beyond the initial period of one year, VisaPro helped T-US successfully prepare and file a comprehensive extension petition on his behalf, articulating how T-US’s operations have become active and have reached a stage that justified his continued presence in the U.S. to manage and guide the U.S. operations.

Denial of the L-1 Visa by the U.S. Consulate and USCIS’s Issuance of a Notice of Intent to Revoke

After the approval of the extension petition that facilitated T-US’s CEO to continue working in the US, he planned a brief trip to India. As the initial New Office L-1 visa granted to him had expired, he needed to apply for a new visa supported by the extension petition approved by the USCIS to enable him travel back to the US and resume work in the U.S.

A visa interview at the consulate may not often go as planned, notwithstanding a prior USCIS approved petition supporting the applicant’s case. Sometimes the U.S. Consulate may deny the application because they do not feel the petition should have been approved. Sometimes, due to an applicant’s natural anxiety and stress that such interviews can create, the applicant may be unable to clearly articulate his or her qualifications for the visa type applied for. Something similar happened in this case. During the visa interview, the Consular Officer decided that the applicant (T-US’s CEO) would not actually be functioning in an Executive capacity in the U.S. and refused to issue him a visa.

After refusing to issue an L-1 visa to T-US’s CEO, the Consulate returned the petition to USCIS for review and revocation. Based on the Consular official’s reference, USCIS issued T-US a ”Notice of Intent to Revoke” (NOIR) citing the consular officer’s concerns and requesting additional evidence from T-US to demonstrate that the beneficiary indeed qualified for a position that was Executive in character.

The end result of all these developments meant that T-US’s CEO was stranded in India after what was supposed to be a brief trip and unable to return to the U.S. to effectively manage the U.S. operations.

Successful Response Strategy and Overcoming a Consular Denial

When T-US received USCIS’s NOIR, VisaPro’s attorney’s thoroughly reviewed the situation. After considering all the materials on hand, VisaPro’s experienced attorneys recommended that re-fling the L-1 petition would be more advantageous over responding to the NOIR.

VisaPro’s attorneys worked closely with T-US to help thoroughly document how the beneficiary’s role was executive in nature, and to prepare and file a new petition seeking T-India’s CEO’s presence in the U.S. Keeping in mind the previous objections raised by USCIS in the NOIR, the package addressed every concern or query that the authorities had raised and traversed beyond the normal parameters to effectively establish how the CEO’s role in the U.S. could not be anything else but Executive in nature. The extensive package submitted by VisaPro resulted in the approval of the L-1 petition for notwithstanding the earlier revocation.

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