Immigration Issues for Mergers, Acquisitions, Restructurings and How These Impact Foreign Your National Workers

As our economy continues to show few signs of “predictability”, company mergers, acquisitions and restructurings (“transactions”) are likely to continue. In general, since a merger, acquisition or restructuring is a “corporate transaction”, the immigration issues often get left in the dust. For this reason, it is important that immigration repercussions that arise from a merger, acquisition or restructuring are considered and that Business Immigration Lawyer is brought into the “deal” or arrangement at the appropriate time – earlier rather then later. This is especially the case since Business Immigration Attorneys may be able to save money for the parties to the transaction.

Immigration regulations closely tie the employer’s identity, location and ownership structure; any change from the merger/acquisition may immediately invalidate an alien employee’s non-immigrant visa. The loss of non-immigrant visa validity could immediately affect an employee’s work status in the U.S. For example, if a transaction is undertaken and the successor party fails to amend the H-1B petition and/or the underlying Labor Condition Application (the “LCA”) then the H-1B nonimmigrant may be out of status. The U.S. Department of Homeland Security (DHS), Citizenship and Immigration Service (“CIS”) has made it clear that there is no “grace period” and that once an H-1B nonimmigrant is no longer employed with the H-1B sponsor then the individual is deemed to be out-of-status.

It is for this very reason that Business Immigration Lawyer advise employers who are involved in a transaction to be sure to annotate the Public Access File (“PAF”) prior to the transaction so that the successor organization clearly assumes the liabilities of the H-1B nonimmigrants. This “assumption” can be added to the PAF prior to the closing of the transaction and this way there is no requirement that there be amendments to all the H-1B nonimmigrant work visas. However, amendments to H-1Bs may be desired by H-1B employees if they will be traveling outside the U.S. as the consulate offices continue to scrutinize H-1B nonimmigrant visa applicants.

Depending upon an individual’s progress in the green card process, Immigrant Visa Petitions may also be impacted by a transaction. A determination will need to be made as to whether or not the new company owner would be considered to be a “successor-in-interest”. If the organization’s new owner has assumed all of the past owner’s liabilities, then the new owner may qualify as a “successor-in-interest”. If the new company is a “successor-in-interest” then the green card process can be continued by the successor organization. Hence, the new employer could continue with the green card process on behalf of the foreign national employee without having to start the green card process/labor certification/PERM from the beginning.

The third, and one of the most important issues with which a business owner or transferor should be concerned, is the Form I-9. A “successor-in-interest” can assume the I-9 liabilities of the organization. Failure to comply with I-9 requirements may result in serious civil monetary sanctions. Therefore, before a transaction is undertaken, an examination of the I-9 forms of the organization should be conducted through either an audit or a review. If the successor organization does not assume the I-9 Forms of the prior organization then new I-9s can be done for each of the organization’s employees. Such I-9 Forms should be prepared for all employees to avoid any allegation of an unfair immigration-related employment practice such as document abuse or discrimination on the basis of citizenship or nationality.

Immigration repercussions should be considered early in any transaction. Initially, an analysis of the immigration status of all of the organization’s foreign national employees and a determination of the form of the corporate change on their status should be considered. Following