Foreign National Employees: Navigating Mergers and Acquisitions18 Nov 2013
Mergers and acquisitions frequently result in critical immigration compliance issues that must be addressed, as explained in the MurthyDotCom NewsBrief, Mysteries of Mergers & Acquisitions: Basics of Immigration Due Diligence (26.March.2012). It is typically the responsibility of a human resources manager or other company representative, not the employee, to be proactive and take the steps necessary to preserve the immigrant and/or nonimmigrant cases of workers whom the company is sponsoring. Each foreign national worker, however, should have at least a basic understanding of how corporate changes may impact immigration cases, and what questions to ask to help avoid future immigration problems.
“Successor-in-Interest” Continues Immigration Process
The concept of successor-in-interest for immigration purposes is vital when considering the implications of corporate transformations. Under immigration laws, companies that fall within the successor-in-interest requirements generally are allowed to carry forward with the immigration cases filed by the predecessor company.
This concept is what allows company “B” to continue the immigration case previously begun with company “A”, when company “B” buys or merges with company “A.” One key element is the acceptance of immigration liabilities by the successor company. Individuals are not expected to understand the nuances of successor-in-interest requirements. However, when asking questions and trying to understand the impact on one’s immigration processing, the assumption of liabilities of the former employer by the new “successor-in-interest” should be understood, as that may allow the earlier immigration cases to proceed.
Impact of Corporate Change on H1B Petitions
Typically, the successor company assumes certain liabilities, including liability for all H1B petitions and is required to update the corporate change and successor relationship in the public access file. This may allow H1B workers to continue employment without disruption under immigration provisions and interpretations which makes it so that each H1B worker’s terms of employment remains the same as with the prior entity. From time to time, however, other material changes accompany the corporate changes. Typical examples include a change in work location and/or a material change in the job duties. In such a case, it is necessary to obtain an updated labor condition application (LCA) and, in most cases, an amended H1B petition.
Impact of Corporate Change on Labor Certifications
If the entity changes its name and tax ID number after the PERM / labor certification (LC) recruitment has been conducted, but before submission, the new entity’s name must be reflected on the LC form. In the event of an audit, the new entity must provide the U.S. Department of Labor (DOL) with the successor-in-interest documentation.
If the successor entity changes its name and tax ID after the LC is filed and no other material change has occurred, then the company may file an I-140 immigrant petition, supported by documentation of the successor-in-interest relationship. Employees may wish to clarify the timing of corporate changes to make sure that the proper procedures are followed in connection with their green card filings.
Impact of Corporate Change on Pending / Approved I-140s
If the sponsoring entity changes its name and tax ID number while the I-140 is pending, or after it has been approved, then an amended I-140 must be filed. Failure to do so may result in delays and/or unnecessary complications. Therefore, a foreign national employee would be wise to verify that an amended I-140 petition has been filed, assuming one is needed. In some cases, an employer may opt to delay this step in an effort to postpone related expenses. In this case, an employee should get an understanding of the employer’s planned timeline for filing, and follow up accordingly.
Impact of Corporate Change After I-485 Filing
When a corporate change occurs after the I-485 application is filed, it is often possible to avoid the need to file an amended I-140 petition. If the case qualifies under the American Competitiveness in the 21st Century Act (AC21) green card portability provisions, the AC21 option can be used. AC21 allows for green card approval based upon changed employment once the I-485 has been pending for at least 180 days. The new employment must be in the same or similar job classification as the initial sponsored employment, but it is not necessary to file an amended I-140 or address successor-in-interest concerns. Those who are unfamiliar with AC21 can find a wealth of information on the topic on MurthyDotCom.
Employees in this situation should discuss the actions the employer plans to take to alert the U.S. Citizenship and Immigration Service of this change in employment. If the timing of the case does not fall within AC21, then it is best to obtain legal guidance to assess the options and risks.
Mergers and acquisitions have the potential to cause a variety of complex problems related to the employment of foreign nationals. Smooth transitions take careful planning. Employers should make every effort to identify and address areas of concern before this type of major transaction is completed. Employees, who may have the most to lose if problems arise, should verify that their employers have taken the proper precautions. The Murthy Law Firm is available to advise foreign national workers and employers on the steps that should be taken to avoid disruptions related to mergers and acquisitions.
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