Mergers, Acquisitions, Etc. on Pending I-140s and I-485s
Posted Mar 25, 2000

If a company has been acquired, merged or had a significant change in its ownership, the new or reorganized entity is generally considered a successor-in-interest ("Successor") to the originally existing company. In the immigration law context, the Successor is required to submit documentation evidencing that it has assumed the rights, duties, obligations and assets of the original employer and that it will be liable for the employment of the beneficiary subject to the terms set forth in the labor certification and I-140 Petition. Similarly, a company that changed its name or corporate structure would need to meet these requirements.  

Traditionally, these requirements by the Successor could have been met in cases where the labor certification (LC) has been approved and the I-140 had not yet been filed, by having the Successor company file the I-140 (immigrant visa petition by employer) with the evidence described above, to reaffirm that the Successor is continuing to offer the employment to the beneficiary in accordance with the information stated on the LC. However, in cases where an I-140 had already been filed without the additional evidence or an I-485 (application to adjust status) had already been filed, and no additional evidence related to this aspect of the petition has been requested by the INS, many would ask whether the company has to start the process over from filing a new I-140 Petition?

There has been a debate among immigration lawyers and the traditional view was that the company that assumed all of the duties and obligations of the predecessor company would have to start the process from filing the Form I-140. So if an I-140 or an I-485 was pending at the time of the company’s merger, acquisition or other change, that petition would have to be re-filed. The more recent view, which seems to make sense from a practical point of view is that, as long as the successor-in-interest agrees to assume all of the obligations of the previous employer with respect to the employment relationship, including agreeing to be liable to the U.S. Department of Labor for the prevailing wage, the job location, job duties and other factors, as set forth in the 750 A forms and to the INS as set forth in the I-140 Petition, with respect to the permanent nature of the job, etc., the INS will allow the process to continue, without the requirement of having to start the process over. 

In a recent liaison meeting with attorneys of the American Immigration Lawyers Association (AILA) the California Service Center (CSC) recently announced its intention to follow the latter interpretation.  The head of the Residence Product Division of the CSC has agreed to the following:

If an I-140 is pending at the time that the company changes, according to the CSC, "no action is required" until the completion of the I-140 stage.  Evidence of the "bona fides" of the Successor should be submitted at the time of filing the I-485 application

The CSC will allow applicants to supplement the file on an existing I-485 by submitting evidence of the "bona fides" of the Successor that shows that the same position and compensation, etc. are still offered. The CSC has confirmed will not require re-filing of the I-140 or the I-485.

In order to avoid having such evidence routed through the correspondence process, the attorney should clearly establish on the cover letter that attached documents are for consideration in connection with a pending I-485 application, based on CSC/AILA concurrence and make clear reference to the I-485 Receipt number.

In general, we at The Law Office of Sheela Murthy, P.C. have observed, even with the other Service Centers, that as long as the successor-in- interest agrees to be liable for the employment of the foreign national employee as set forth in the documents submitted to the INS at the I-140 or even the I-485 stage, the process has been continued by the INS.

Please note that many important procedures with INS, for example mergers and successors-in-interest, are not specifically addressed in the immigration statutes or regulations but have been the subject of numerous INS Memoranda as well as letters and announcements to AILA and its member attorneys, because of our intense lobbying efforts to help companies and their employees. Please note that if there is a change in the law, these advisory opinions are not binding on the INS, though the INS and the affected companies and their employees tend to rely heavily  on such advisory opinions.