Managing Immigration Compliance During Mergers & Acquisitions (M&A)

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By Min Kim

US immigration poses certain challenges for companies considering mergers & acquisitions (M&A). Employment-based immigration often requires strict business-related forecasts, which can be difficult in fast-moving transactions. Employers with an upcoming M&A should prepare for how the transaction will directly impact their foreign national work staff in the US. H-1B visas and green cards are two of the most common sponsorships impacted by an M&A.

US Citizenship and Immigration Services (USCIS) has not caught up to the needs of the ever-evolving industries where multinationals do business. To comply with US immigration laws, employers must usually:

  • Assign one foreign national
  • To work for one US employer
  • At a specific worksite
  • For a defined time-period
  • In a pre-determined role

In the M&A space, the need to move quickly can be at odds with these restrictive regulations.

M&A and H-1B Visas

In most cases, an M&A will have minimal impact on H-1B compliance. Mainly, employers will need to update the H-1B worker’s Public Access File (PAF) with the help of an experienced attorney.

Public Access Files (PAF)

Employers must properly maintain a PAF for any H-1B employee. They should also carefully draft and file a Labor Condition Application (LCA) with the US Department of Labor (DOL).

Officer Affidavits During an M&A

For M&A employers, the acquiring company must prepare and place an officer affidavit in each of the seller company’s PAFs.

The officer affidavit should cover:

  • The acquisition
  • How the acquiring company is assuming the interests and obligations of the original H-1B employer, post-acquisition

Once an employer has officer affidavits, they eliminate the need to file new LCAs with the DOL. Importantly, these affidavits also excuse the acquiring company from filing any H-1B amendment petitions.

When to File a New or Amended H-1B Petition

If both of the following conditions are met, a petitioning employer does not need to file a new or amended H-1B petition when an M&A is occurring:

  • New acquiring corporate entity takes on the H-1B interests and obligations of its predecessor
  • Terms and conditions of the H-1B employment remain the same, although the identity of the H-1B petitioner may change

An H-1B amendment petition is necessary if the:

  • Acquisition resulted in a substantial change to the intended job duties, or
  • Proposed work location moved outside of the original location’s Metropolitan Statistical Area (MSA)

How M&A Impacts PERM Labor Certification for Green Cards

Mergers & Acquisitions impact sponsored permanent employees differently, depending on whether they already have their green card or not. An M&A poses compliance risks when employers have not yet finished the green card PERM Labor Certification process.

PERM Labor Certification compliance during an M&A differs based on:

The timing of the M&A will dictate the obligations of:

  • The hiring employer
  • The acquiring employer in assuming its successor-in-interest role

When did the M&A Occur during PERM Labor Certification?

If the M&A was completed…

Recently, during the prevailing wage (PW) determination stage…

There is no burden to submit a new PW request with the new entity as the hiring employer

A few months ago, and the prevailing wage (PW) determination stage is still pending…

  • Rely on the old PW with predecessor name

  • Complete the rest of the PERM using the acquiring entity’s name

  • Ensure that the audit file contains supporting documents to verify the acquisition

After pre-filing recruitment ads, but before filing ETA Form 9089…

Prepare to prove that the employer is a bona-fide successor-in-interest in the event of an audit

After ETA Form 9089…

Use the name of the predecessor as the petitioning US employer for PERM, unless there is a strategic choice to delay filing ETA Form 9089 until after the M&A is complete

If an acquisition is not yet finalized, employers should use the predecessor legal name and identity on the pre-filing PERM recruitment campaign.

In every case, the current employer should gather documentation to show that:

  • The acquiring employer
  • Has assumed the assets and/or liabilities
  • Of the predecessor corporate entity

Related to the offered job opportunity

Conclusion

Documentation and record-keeping are essential to immigration compliance for both H-1B and PERM labor certifications during an M&A.

We recommend contacting a trusted Chugh, LLP attorney. Our experienced team handles all the details, ensuring you remain compliant with immigration law during a merger or acquisition.