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>I-9 Employment Eligibility Verification
>Worksite Enforcement
>E-Verify
>Other Government Programs
>I-9 Help Desk
>Audit and Compliance Help Desk
>General Compliance
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Mergers/Acquisitions/Corporate Restructuring/Due Diligence
Mergers,
acquisitions and corporate restructuring
present special challenges for U.S.
employers intending to retain key
foreign workers who hold various
nonimmigrant visas (e.g., H-1B, L-1A,
L-1B, E-1, E-2, TN and E-3), or are
in the process of obtaining U.S.
permanent residence. Different
notification and amendment rules
apply to different visa classifications.
We assist employers in devising due
diligence procedures to address immigration
related consequences of corporate
reorganizations, consolidations,
etc. Some examples of these
consequences are:
Changes in the ownership structure
of H-1B employers generally do
not require the filing of a new
or amended H-1B petition so long
as the new entity assumes the duties
and liabilities of the original
employer, including all Labor Condition
Application (LCA) and immigration-related
obligations, and the terms and
conditions of employment remain
the same. In instances where
a new entity is the result of a
merger of the original employer
with another company, an amended
petition is required. Where
a merger, acquisition, or corporate
restructuring results in changes
requiring a new LCA, an amended
petition may be required.
Employers of L-1 intracompany
transferees undergoing reorganization
must file amended L-1 petitions
if the original "qualifying
relationship" has been disrupted
but the new entity maintains a
qualifying relationship with at
least one entity abroad. However,
if both the sponsoring entity and
the employer abroad have been acquired
by a third entity, and their qualifying
relationship remains unchanged,
an amendment would likely not be
necessary. Finally, where
a qualifying relationship is altered,
such as where a sponsor is acquired
by an entity with no overseas affiliations,
the L-1 petition is subject to
revocation, and the beneficiary
must consider other visa options.
The key consideration with E-1
and E-2 treaty visas is the nationality
of the owners of the new entity.
An E-1 or E-2 visa holder must
have the same nationality as the
owners of the new entity or the
eligibility for the visa classification
is lost. Short of this issue,
USCIS rules envision amendments
where the original employer undergoes
fundamental (substantive) changes,
and otherwise impose reporting
requirements to address nonsubstantive
changes.
In the immigrant visa and related
contexts, the successor entity
must assume "substantially
all of the rights, duties, obligations,
and assets" of the predecessor
company and this showing is typically
made at the I-140 immigrant petition
stage. Different sets of
rules apply during the labor certification
process, each dealing with pre-submission,
post-sub mission, and post-approval
phases. Individuals qualifying
under USCIS' green card portability
provisions may not be required
to file new or amended I-140 petitions
and are generally able to preserve
permanent residence benefits without
regard to "successor-in-interest"
rules.
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