Competition in the global market place, the recovering economy in the United States and the continued rise of emerging markets are giving rise to mergers, acquisitions and business restructuring at an increased pace. These types of transitions can often affect employment based applications for permanent resident status. Employers are urged to include experienced immigration counsel in their due diligence team before and during the process of negotiating the terms of a deal that will change the structure of a business. Below are three common ways in which a merger or acquisition can affect the green card application for an employee.
Fundamentally, it must be determined whether there will be a change in ownership of an employer, or whether the target employer will cease to be an employer. There are many stages and types of asset purchase deals that must be examined from an immigration standpoint to determine whether the new business entity formed from the transaction will be a successor-in-interest of the old business.
Successorship-in-interest is important because if the new company is determined to be the successor of the old company, many green card applications will not need to be re-started. Knowledgeable immigration attorneys will examine the transaction under a three pronged test to answer 1) is the job the same; 2) does the new business entity qualify as a sponsor for immigrant petitions, including the ability to pay the proffered wage; and 3) the new business entity must be able to describe the transfer and assumption of the old companies assets and liabilities. Passing this test often means that previous efforts in obtaining permanent labor certification can be preserved.
Additionally, employees who are in the final stages of the green card process may be able to file what is called an AC-21 letter with the USCIS. If an employee has filed a green card application (Form I-485) it has been pending at the USICS for over six months, and the employee will have a similar job and duties, the employee may be permitted to “port” an old green card application to a new employer.
Needless to say, there are many complexities involved in a successful, merger, acquisition or restructuring. The complexities involved in preserving green card applications, not to mention other types of visas as well as I-9 compliance, can be daunting.
If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call the law firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, the law firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.