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Impact of Mergers and Acquisitions on H1B Visa & L1 Visa Holders
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An issue of heightened concern in the recent years with the frequency of corporate restructuring, mergers and acquisitions, spin-offs or other action, is whether new or amended visa petitions must be filed for H and L workers. The rule differs with respect to H1B visa and L1 visa holders.

CASE SCENARIO

Company A, a software development company, was recently purchased by the Grabo Company. Company A has 11 H-1B employees working at its headquarters in Houston, TX. Grabo Company is not planning on moving any of the new employees to other locations. It does not want to bother with the time and cost of filing new petitions for these employees and opts just to add its statement to the public access file. The Vice President for Human Resources writes a letter acknowledging that it has purchased Company A, and that Grabo Company will assume all the responsibilities and obligations for the H-1B employees.

H-1B Visa Holders

A change in corporate structure does not necessarily require an amended petition. A new employer is not required to file an amended petition and new Labor Condition Application (LCA) with respect to transferred employees, even where the new employer has a new federal Employer Identification Number (EIN), if the new employer assumes all the obligations and liabilities of the LCA and immigration related matters. The employer must keep a list of all H1B workers transferred to the new company and maintain the public access files. The public access files should contain the following:

  • A copy of the LCA for each transferred employee with the certification and date

  • A description of the wage determination system used

  • A copy of the EIN; and

  • A sworn statement by an authorized representative of the new employer expressly acknowledging the assumption of all LCA and immigration obligations and liabilities
If any transferred employee is moved to a new location that was not covered under the LCA filed for that employee the new employer will need to file a new LCA and an amended petition.

L-1 Visa Holders

Any change in ownership triggers the need to file an amended petition for L-1 employees. This is due to the ‘qualifying organization’ requirement for L-1 visa holders. The new entity must show that they continue to meet one of the USCIS definitions as a qualifying organization.

Filing Requirements

There are two options available for L-1 and H-1 transferred employees. The first is to seek USCIS confirmation that amended petitions are required. A letter outlining the details of the transaction or reorganization with conclusions on whether amended petitions are required is submitted to the USCIS Headquarters. USCIS will respond with its instructions on any filings necessary.

The second is to use the ‘Class Representative Approach’ where a single representative Form I-129 (with fee) is filed with all the affected employees names listed on an addendum, to be followed by actual applications at a later date if required. The representative petition would give all the facts regarding the new structure and the continued qualifying relationship for L-1 purposes. If the company has a Blanket L approval it can be amended to cover the new list of qualifying companies. Then any employees transferred to the qualifying companies are covered.

The benefit of both options is that USCIS is clearly put on notice of the changes and the employer is allowed to proceed with business. The regulations indicate that filing after the reorganization has been completed is allowed. Additionally, the employer can request that all amended petitions be filed at a single Service Center.

Conclusion

VisaPro attorneys have successfully worked with companies involved in corporate reorganization and addressed immigration related issues by first evaluating the current immigration status of employees and then determining the effect of such corporate reorganization on their status.

Consult a VisaPro attorney on how to handle immigration related issues during corporate restructuring.

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