Advice Needed

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Naveen111

Registered Users (C)
Hi All,

I am working for company A from past 3 yrs. They have filed my labour, 140, 485 EAD, AP etc., . My 485 RD is 07/05/02. It was almost one year to date w.r.t my 485.
Now company X is acquiring company A, from January 1,2004. For the acquisition Do I need to file anything with BCIS. To my knowledge I think the acquired commpany needs to file amended I-140 for me.

1. What is 140 amendment?

2. How long does it take to get approved? Is it similar to I140?

3. I also got the offer in the same position at the client directly to join as a new employee. Since my 485 was filed a year ago as per AC21 can I join with the client directly? Will it be better than filing 140 amendment?

I appreciate your input. Thanks to all in Advance.
 
Option1) Filing I140 amendment : It is required. Your company and the lawyer will know all the details. They will take care of it.
Just make your company HR person to tell the lawyer to file the I140 amendment. Then follow up with lawyer. Do not worry about further legal details.

option2) Joining as a new Employer : Sounds good to me. Much better option. No need to worry about I140 amendment. Ask your lawyer to go for option2
 
Naveen111,

You have crossed 180 days of applying I-485 (Your RD date 07/05/02 as posted).

Its better that your company X need not go for I-140 ammedment at this stage. There are possibilities of you getting approved without going for I-140 ammendment. If BCIS raise a RFE, you can reply the details and mention the use of AC21 (eventhough its a company acquisition).

If you go for I-140 ammendment, your case may likely be transfered to local BCIS office for interview and you may face delays.

Consult a good lawyer who knows well about AC21 and I-140 ammendments. They can guide you better.
 
140 Amendment

Kumars 68,

AC21 comes into effect only if there is change in employment.
Since my company 'A" is brought over by Company 'X' my lawyer says it is better to file 140 amendment.

Here is the real question.

Can AC21 will be applicable if comp.A is brought over by Comp X.?
with the same job duties,salary and position?

OR

Does 140 amendment needs to be filed since AC21 is not clear?

Thanks for the responses.
 
I asked the same question and below is the response I got from my paralegal (Sheela Murthy's firm)

Lahari,

Please find below some standard information on acquisitions and mergers. If you would like to discuss your specific situation kindly set up an appointment with Attorney xxxxxx by calling our office and speaking to xxxx who will assist you in setting up the appointment.

If a company has been bought out, merged or had a significant change in ownership it is generally considered a Successor-in-Interest to the originally existing company, which filed your original labor certification. This would require the Successor to submit documentation that it has assumed the rights, duties, obligations and assets of the original employer and that it continues to operate the same type of business.

Similarly, a company that changed its name or location (even within the same metropolitan statistical area) would need to meet these requirements. Either filing a new I-140 with the evidence mentioned in the name of the Successor Company, or if an I-140 is already filed and no additional evidence related to this aspect of the petition has been raised, presenting the change at the I-485 adjustment stage.

There has been a debate among immigration lawyers and the traditional view was that the company needs to assume all of the duties and obligations of the predecessor company. The more recent view, which seems to make sense from a practical point of view is that, as long as the successor-in-interest agrees to assume all of the obligations of the previous employer with respect to the employment relationship, including, agreeing to be liable to the U.S. Department of Labor for the prevailing wage, the job location, job duties and other factors as set forth in the 750 A forms and to the INS as set forth in the I-140 Petition, with respect to the permanent nature of the job, etc., the INS will allow the process to continue, without the requirement of having to start the process from ground zero. One of the INS Service Centers in a recent liaison meeting with attorneys of the American Immigration Lawyers Association (AILA) agreed with the latter interpretation.

The Law Office of Sheela Murthy, P.C. has observed that as long as the
Successor-in- interest agrees to be liable for the employment of the foreign national employee as set forth in the documents submitted to the INS at the I-140 or even the I-485 stage, there is usually not much of a problem.

Please note that these concepts with mergers and successors are not mentioned in the Immigration law or regulations but have been promulgated by the INS in various Memos and letters to AILA because of our intense lobbying efforts to help clients like you. Please note that if there is a change in the law, these advisory opinion Memos do not binding on the INS, though they and our clients tend to rely on them heavily.
 
Source

lahari,

Thanks for the response,

The memo does not exclusively said to file 140 amendment when the business and everything is the same.

Could you forward the source of info like website, I will forward to my attorney and check what does she say on this.

I appreciate your information.

Thanks
 
Naveen,

I 140 amendment is a notification to INS stating the changes, which in your case is employer name.

If your I-485 is older than 180 days (which is true in your case), you do not need to file I-140 amendment. If any RFE on your case, you have to provide the employer name change explaination letter and the reqd documents and you should be alright. I know my friends whose case was older than 180 days who got RFE and cleared.

My I-485 was less than 180 days old when my company was bought over/name changed. It took 2 months to get the I140 amendment approved. It does not hurt your I485.

If someone's I140 is itself pending, then I-140 needs to be re-applied with new company name if there is a change in the name of the company.

To Your question:
1. AC21 cannot be applicable if company name changes.
2. I don't think you need to file I140 amendment but please contact your lawyer.

Hope this helps.
 
about your friend

Thanks for the response GCBoss.

What was your friend's case? Is it the same brought over? What was the RFE about?
 
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