_edit.png){kind=small}
Who is this HR Guide for?
This Guide is written for HR leaders to guide them through the complexities of how a company acquisition impacts employees on various visas and statuses, green cards, and other processes.
Here's a comprehensive plan to help you understand the implications of each visa type and the necessary steps to ensure compliance:
Defining Types of Acquisitions
The type of acquisition can have different impacts on visa types. So, it's important to understand which category applies to your company's situation.
Asset Purchase
In an asset purchase, the acquiring company purchases specific assets of the target company, which may or may not include employees or the responsibilities and obligations of the previous employer.
Stock Purchase or Merger
In a stock purchase or merger, the acquiring company typically assumes all assets, liabilities, and obligations of the target company, and the new company is considered a "successor-in-interest".
F-1 Students with OPT or STEM OPT EAD
Impact:
F-1 students on Optional Practical Training (OPT) or STEM OPT are authorized to work based on their educational background and employment authorization document (EAD). Their status is tied to the continuation of employment and maintaining the relationship with a qualifying employer.
Considerations:
Ensure the employment remains related to their field of study.
The employee should report the change in employer name and address in the SEVIS system within 10 days of the change.
Required Action:
Update the student's employer information in the SEVIS system.
When Should Amendments Be Filed?
Within 10 days of the change in employer information.
When Can The Employee Start Work with the Acquiring Company?
Employees can continue to work as long as the new employment information is updated in SEVIS.
H-1B, H-1B1 and E-3 Visa Holders
Impact:
H-1B visa holders are tied to a specific employer, job role, and location as defined in the approved petition. An acquisition that results in a change of employer can impact their H-1B status.
Considerations:
If the acquisition qualifies as a successor-in-interest, where the new company assumes all obligations, liabilities, and assets of the old company, and the terms of employment remain the same, an amended H-1B petition may not be necessary. However, a new LCA (Labor Condition Application) must be filed with the Department of Labor (DOL) reflecting the new employer.
If there are significant changes in job duties, location, or employer, an amended H-1B petition must be filed.
Tip: A more conservative approach is to file an H-1B transfer.
Required Action:
File a new LCA with the DOL under the acquiring company’s name.
File an amended H-1B petition with USCIS if there are significant changes to the job role, location, or employer (if it’s not a successor-in-interest situation).
When Should Amendments Be Filed?
The new LCA must be filed before the acquisition closes or as soon as possible after the acquisition if the successor-in-interest situation applies.
The amended H-1B petition should be filed before the employee begins work under new conditions.
When Can The Employee Start Work with the Acquiring Company?
Employees can start working with the acquiring company after the new LCA is filed and, if required, after the amended H-1B petition is filed with USCIS. Ideally, wait until the USCIS receipt notice is received to avoid any issues.
TN Visa Holders
Impact:
A change of employer due to an acquisition will typically require a new TN petition if the terms of employment change significantly.
If the acquiring company is a successor-in-interest and the employment conditions remain the same, and if the new employer continues to meet the TN visa requirements, a new petition might not be needed immediately. However, a new TN petition should be filed if there are any changes in job duties, location, or employer that are not covered by the original TN application.
Required Action:
If the acquisition leads to a change in employer or a significant change in job duties, file a new TN petition with USCIS or apply for a new TN status at the port of entry (for Canadians) or at a U.S. consulate (for Mexicans).
If the new employer is a successor-in-interest and the terms of employment remain unchanged, no immediate new petition is required, but it is advisable to have documentation supporting the successor-in-interest relationship.
When Should AMendments Be filed?
If a new TN petition is required due to a change in employer or job duties, it should be filed as soon as possible after the acquisition is finalized and before the employee begins work under the new employer.
When Can The Employee Start Work with the Acquiring Company?
Employees can start working with the acquiring company after a new TN petition is filed with USCIS and approved or after obtaining a new TN status at the port of entry or U.S. consulate if a change is required.
If no new petition is required due to the successor-in-interest situation, employees can continue working under the same terms as the original TN status.
L-1A and L-1B Visa Holders
Impact:
L-1 visa holders are transferred from a foreign entity to a related U.S. entity. An acquisition may alter the corporate structure, potentially affecting the relationship between the U.S. entity and the foreign company.
Considerations:
If the acquiring company continues to maintain a qualifying relationship (e.g., parent, subsidiary, affiliate, or branch) with the foreign entity, the L-1 status can generally continue without amendment.
If the acquisition changes the qualifying relationship or the terms of employment, an amendment may be required.
Required Action:
Review the acquisition details to ensure the qualifying relationship is maintained.
File an amended petition with USCIS if there is a significant change in employment terms or corporate structure affecting the qualifying relationship.
When Should Amendments Be Filed?
Review immediately upon acquisition to determine the need for amendments. File as soon as possible if needed.
When Can The Employee Start Work with the Acquiring Company?
Employees can continue working if the qualifying relationship is maintained. If an amendment is required, it should be filed before the change takes effect.
H-4 & L-2 (Dependents of H-1B and L-1 Visa Holders)
Impact:
H-2 and L-2 dependents are granted work authorization based on their relationship with the principal H-1B and L-1 visa holders.
Considerations:
No direct impact on the H-4 and L-2 statuses due to the acquisition unless the H-1B and L-1 statuses are affected.
If H-1B or L-1 status changes or requires amendment, corresponding changes may need to be addressed for H-4 and L-2 dependents.
Required Action:
Generally, no action is required unless the underlying status changes.
When Should Amendments Be Filed?
No amendments are required unless the underlying status changes.
When Can The Employee Start Work with the Acquiring Company?
Employees can continue working as long as their EAD is valid and the underlying status is unaffected.
Employment Authorization Document (EAD) Holders
Impact:
EAD holders are typically authorized to work based on other statuses (e.g., adjustment of status applicants, L-2 spouses, and certain H-4 dependents).
Considerations:
Ensure continuous employment authorization through the EAD. No direct impact unless the underlying status changes.
Required Action:
Generally, no action is required unless the underlying status changes.
When Should Amendments Be Filed?
No amendments are required unless the underlying status changes.
When Can The Employee Start Work with the Acquiring Company?
Employees can continue working as long as their EAD is valid and the underlying status is unaffected.
J-1 Visa
J-1 visa holders can work in different capacities in a corporate environment:
Interns: Engaged in practical training to gain exposure to U.S. culture and receive hands-on experience in their chosen occupational field.
Trainees: Participating in training programs that enhance their skills in their occupational fields.
Research Scholars/Professors: Engaged in teaching, lecturing, observing, or conducting research at accredited educational institutions, research institutions, or similar types of institutions in the U.S.
Impact:
Sponsorship: The J-1 visa holder's status is tied to the sponsor organization listed on their DS-2019 form (Certificate of Eligibility for Exchange Visitor Status). If the acquisition affects the sponsor’s ability to continue supporting the J-1 visa holder’s program, this could impact the visa holder’s status.
Program Continuity: The acquisition must not disrupt the continuation of the exchange program as specified in the DS-2019. If the nature of the program or the J-1 holder's role changes significantly, it might require adjustments or even a transfer to a different sponsor.
Change of Host Organization: If the J-1 visa holder is working at a specific host organization, and this changes due to the acquisition, this could require notification or amendment with the program sponsor.
Considerations:
Evaluate the Impact on Sponsorship and Role
Review Sponsor Obligations: Determine if the acquiring company will continue to fulfill the obligations of the J-1 visa sponsorship. If the sponsor remains unchanged (i.e., the acquiring company continues as the designated sponsor), generally, there might be no immediate action required.
Amendment Requirements: If the acquisition affects the program's structure, location, or training plan, an amendment to the J-1 program might be required. The acquiring company must coordinate with the J-1 visa sponsor to ensure compliance with program requirements.
Notify the Designated Program Sponsor
Notification of Changes: The J-1 visa holder or the HR department of the acquiring company should notify the designated program sponsor of any changes in employment, location, or structure that may impact the visa holder’s status.
Seek Guidance from the Sponsor: The program sponsor can provide specific guidance on whether an amendment is necessary or if a new DS-2019 needs to be issued.
When Should Amendments Be Filed?
Timing of Notification: As soon as the acquisition details are finalized and before any changes take effect, the acquiring company should notify the designated program sponsor of any changes that could impact the J-1 visa holder’s status.
Amendments or Transfers: If an amendment or transfer of sponsorship is required, this should be initiated immediately to ensure compliance with J-1 program regulations. It is important to act promptly to avoid any potential status violations for the J-1 visa holder.
When Can Each J-1 Visa Holder Start Work with the Acquiring Company?
Continuation of Employment: If there are no substantial changes to the J-1 visa holder’s program and the sponsor remains the same, the J-1 visa holder can continue their program without interruption.
Pending Amendments: If an amendment to the J-1 program or a new DS-2019 is required due to changes in employment terms, location, or sponsorship, the J-1 visa holder should wait until the amendment is processed and approved by the sponsor before continuing with any new or altered employment duties.
Program Transfers: If a transfer to a new J-1 sponsor is necessary, the J-1 visa holder must wait until the transfer is approved and a new DS-2019 is issued before starting under the new sponsor.
Green Card: PREVAILING WAGE DETERMINATION (PWD)
Impact:
Successor-in-Interest: If the acquiring company is a successor-in-interest and assumes all rights and obligations of the original employer, the PWD request can generally continue without interruption. The acquiring company should notify the DOL of the change in ownership and provide evidence that it is assuming the existing PERM process, including any PWD requests.
No Successor-in-Interest: If the acquiring company is not a successor-in-interest, or if the acquisition involves significant changes to the job position, location, or other employment terms, the PWD request may need to be withdrawn and refiled under the new company’s name. This would restart the PWD process and potentially delay the green card process.
Actions to Take if Waiting for PWD
Notify the Department of Labor (DOL)
Successor-in-Interest Notification: If the new company is a successor-in-interest, notify the DOL of the change in ownership. This notification should include details about the acquisition and evidence that the new company will assume the labor certification process.
Withdraw and Refile PWD: If the new company is not a successor-in-interest, or if there are significant changes to the job that would affect the PWD, the current PWD request should be withdrawn. The new employer must then file a new PWD request under its name.
Review Job Details and Ensure Continuity
Consistency in Job Details: Ensure that the job title, description, and other key details remain consistent with the original PWD request. If the job details change significantly due to the acquisition, this may necessitate starting over with a new PWD request and could delay the overall green card process.
Document Changes
Maintain Documentation: Keep detailed records of all communications with the DOL, including any notifications or requests for amendments. This documentation is important to demonstrate compliance and continuity in the green card process.
Green Card: PERM
Impact:
Successor-in-Interest: The PERM process can generally continue without restarting if the acquiring company can demonstrate that it continues to offer the same job opportunity under the same terms and conditions as described in the original PERM application.
Change in Job Role or Conditions: If the acquisition changes the job role, location, or conditions significantly, a new PERM application may be required because the original job offer would no longer be valid. This means restarting the process from the beginning.
Actions to Take if Waiting for PWD
Notify the Department of Labor (DOL)
Successor-in-Interest Notification: If the new company is a successor-in-interest, notify the DOL of the change in ownership. This notification should include details about the acquisition and evidence that the new company will assume the labor certification process. Typically, this involves submitting a letter to the DOL that outlines the change in ownership, describes how the new employer is a successor-in-interest, and confirms that the new employer will continue to offer the same job opportunity under the same terms and conditions as described in the original PERM application.
Withdraw and Refile PERM: If the new company is not a successor-in-interest or if there are significant changes to the job that would affect the PERM application, the current PERM application may need to be withdrawn. The new employer must then conduct a new recruitment process and file a new PERM application under its name.
Review Job Details and Ensure Continuity
Consistency in Job Details: Ensure that the job title, description, and other key details remain consistent with the original PERM application. If the job details change significantly due to the acquisition, this may necessitate starting over with a new PERM application, which could delay the overall green card process.
Document Changes
Maintain Documentation: Keep detailed records of all communications with the DOL, including any notifications or requests for amendments. This documentation is important to demonstrate compliance and continuity in the green card process.
Considerations for Timing and Compliance
Timing of Notifications: Any required notifications to the DOL should be made promptly following the acquisition to avoid delays in the PERM process.
Compliance with DOL Regulations: Ensure all steps are in compliance with DOL regulations to avoid jeopardizing the PERM application or the green card process. This includes submitting any necessary amendments or new applications promptly and accurately.
Green Card: I-140 (Immigration Petition)
Impact:
Successor-in-Interest: If the acquiring company qualifies as a "successor-in-interest," meaning it has assumed all rights, duties, and obligations of the original employer, including the job offer and conditions specified in the approved PERM and I-140, you generally do not need to restart the PERM process. The new company must notify the U.S. Citizenship and Immigration Services (USCIS) of the change in ownership and provide evidence that it is assuming the existing I-140 petition.
Change in Job Role or Conditions: If the acquisition results in significant changes to the job role, location, or terms of employment that differ from what was outlined in the PERM application and the I-140 petition, you may need to restart the PERM process. Significant changes could include a different job title, new job duties, or changes in the offered salary that would affect the labor market test conducted for the original PERM.
Actions to Take If Employee has an Approved I-140 or Awaiting Approval
Notify USCIS
File an Amendment: If the successor-in-interest status is established, you should notify USCIS by filing an amendment to the I-140 petition or submitting a letter explaining the acquisition and the successor-in-interest relationship. This notification ensures USCIS is aware of the change in employer and confirms that the job offer and terms remain consistent with the approved PERM and I-140.
Restart PERM if Necessary: If the new company cannot be considered a successor-in-interest, or if there are significant changes to the job (job title, duties, location, and other terms) that would affect the PERM, the new employer may need to conduct a new recruitment process and file a new PERM application.
Green Card: I-485 (Adjustment of Status or Consular Processing)
Impact of Acquisition:
Successor-in-Interest: If the acquisition does not significantly change the job offer and the new employer is considered a successor-in-interest, the I-485 application can typically continue without interruption. The acquiring company should notify USCIS of the change and provide documentation showing that it continues to offer the job under the same terms.
Change in Job Role or Conditions: If the job role, location, or terms of employment change significantly, it might require a new I-140 petition (if the original I-140 is no longer valid), which could impact the I-485 application. However, if the I-485 has been pending for at least 180 days, and the employee is transferring to a new position in a "same or similar" occupational classification, they might still be able to proceed with the adjustment of status application under the American Competitiveness in the 21st Century Act (AC21) portability rules.
Actions to Take:
Notify USCIS: If the I-485 is already filed and the acquiring company is a successor-in-interest, submit documentation to USCIS to reflect the change in employer.
Evaluate AC21 Portability: For employees with a pending I-485 for more than 180 days, evaluate if the AC21 portability rules apply to allow the adjustment of status to continue under the new employer.
File a New I-140 if Required: If significant changes prevent the use of AC21 or if the successor-in-interest status does not apply, a new I-140 may be necessary, potentially impacting the timing of the green card process.
Conclusion
To ensure a smooth transition for all visa holders, it's crucial to review each employee's situation individually, understand the nuances of the acquisition, consult your immigration counsel, and take timely action. Proper planning and coordination with immigration counsel will help maintain compliance and minimize any disruptions to the employees' work authorization.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.
Commentaires