Company Mergers/Acquisitions and H-1Bs
Posted May 08, 2000

In a letter to the Immigration and Naturalization Service (INS), an attorney enquired whether an amended H1B petition is required in the following scenario:
Two companies merge and a successor-in-interest is created with a new federal tax identification number but all foreign nationals remain in the same job positions and work locations.

In addition, the attorney asked these follow-up questions:

a) Whether the petitioner is required to pay the $500 H-1B supplemental fee;

b) Whether the $500 H-1B supplemental fee is required when an amended H-1B petition is filed to reflect the new federal tax identification number, but no H1B extension of time requested on Form I-129;

c) If INS would accept petitions filed after the previous company has been dissolved; and

d) Whether there is a time frame in which amended petitions, pursuant to a change in federal tax identification number, must be filed.

In the immigration law context, a successor-in-interest is a generally regarded as a company that assumes all the rights and obligations of the predecessor company. In response to the questions posed above, INS agreed that a successor-in-interest was created in the situation described, and stated that an H1B amended petition is not required. However the INS pointed out that if a new Labor Condition Application (LCA) is required pursuant to the Department of Labor's regulation, amended H1B petitions must be filed. Since the Department of Labor does indeed require a new LCA if there is a new federal tax identification number, that would mean that an amended H1B petition is, in fact, required! INS also reiterated that the $500 filing fee is not required for amended petitions unless the amended petition requests an extension of the beneficiary's stay.

INS further pointed out that current regulations do not specify a specific time frame for filing the H1B amended petition. However, it is suggested that employers and their representatives file the H1B amended petitions as soon as possible after the occurrence of the event necessitating the filing of the H1B amendments. According to the INS, an amended petition may be filed with the INS even if a predecessor company has already been dissolved.