Filing Cap-Subject H1B Petition Via Successor-in-Interest Employer

If an H1B registration is selected in the lottery, ordinarily, only the employer that submitted the registration is eligible to file an H1B petition for the registrant. However, what if, as a result of a merger or acquisition, the entity that submitted the registration no longer exists by the time the H1B petition is to be filed? When this occurs, a “successor-in-interest” may still be able to file the cap-subject H1B petition on behalf of the registrant.

“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.

Successor-in-Interest in H1B Registration Context

The USCIS normally requires the information in the H1B petition to be identical to the information submitted during the registration process. If any of the information differs, an explanation and supporting evidence should be included with the petition.

The American Immigration Lawyers Association (AILA) recently confirmed with the U.S. Citizenship and Immigration Services (USCIS) that a successor-in-interest could be used in the context of filing a cap-subject H1B petition based on a selected registration. So, a discrepancy between the petitioning entity and the one that submitted the registration will not automatically result in the cap-subject petition being denied, assuming that evidence is provided that shows the petitioner is a successor-in-interest.

Conclusion

In the vast majority of situations, the employer filing a cap-subject H1B petition must be the same one that submitted the selected registration. However, in situations where the petitioning employer can demonstrate that it is a successor-in-interest, it should still be possible to proceed with filing the H1B cap case.

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