Consequences on I140 in "Asset aquisition" type merger...

P

PradK

Registered Users (C)
I work for retail Co. and recently filed I140 and 485. Just after filing these, our Co. (which was a subsidiary to another Co.) was aquired by a new Co.
Essentially, I was working for a Co. A subsidiady of B, and B sold our Co. A assets to Co. C. This sale includes most of the retail stores of A, that now started to operate under name C.

While the name changed on our pay slips etc., there is no change in physical location or job responsibilities.

Does any one have any info. on impact of Asset aquisitions like this on our pending petitions? While I am trying to get information from the new Co.,s Attorneys, so far not much luck.

Any help or links is appreciated,
Prad
 
Asset buy

Did the new company include anything in the Asset buy contract which says that it will take care of your immigration liabilities?
I have a INS letter which states the company that buys the assets should mention in the contract that it will take care of immigration liabilities(for employees on H1 or I-140 pending). Send me your email I will fwd you the letter.

I too am in the same boat. I myself am wondering if INS issues a RFE for I-140 which company's financial document should I submit. The financial records of the company that sponsered my GC is really bad. Also I was on loss of pay leave for two months last year. Hence my W2 will have a number less than the salary menitioned in LC.
I wish some one can help me in this.
 
Last edited by a moderator:
UnitedNation, Thanks for the info! I have been going thru lot of your posts. They are very helpful.

I have attached the INS letter I was talking of.
 
UnitedNations,
No, I am not working in JP Morgan. I work for a co in western north carolina.

If I get a RFE for I140 whose financial documents should I submit the original sponsoring company's or the docs of company that bought the assets?

I am yet to join the Company (say AssetComp) that bought our assets. At present I am the ONLY employee of the company (say SponsComp) that sponsored my GC. Few have become AssetComp's contractor and rest have been laid off. I told AssetComp that I would not join them till I get I-140 approved.

When I filed my I140, SponsComp did not have any tax returns for the last two years, so I just submitted the Profit statement for two months(!!) :( Even otherwise the financials of SponsComp are very bad. Plus I was on loss of pay leave for 2 months last year, hence my W2 wages and LC wages dont' match. Based on the "Ability to pay" calculations mentioned in ur other posts, I might just pass the criteria.

But now I feel that joining AssetComp will be better. AssetComp's financials are very sound. As you wrote in your reply, I guess I can submit AssetComp's Financial Docs if INS issues a RFE.

My apologies for writing such a lengthy post!

Thanks for your guidance!
 
RajaYogi, unitednations and all...

Thanks for the information and sorry for delay, its been a crazy at work.

Based on the information that the above links provide and few others from googling, it seems to me that over the time DOL and USCIS/INS have softened their definition of when can we continue processing. But, at the same time, from the all the information available, and nothing unusual, there are no regulations that either DOL or USCIS have issued beyond statements in liason meetings, processing directives etc.

It seems that the most important thing is to prove that the aquiring Co. is the successor-in-interest. While one restrictive definition to qualify for successor-in-interest seems to be a need to assume, all/most liabilities and assets by the aquiring Co. from acquired Co. An important point here is, these assets and liabilites are in the context of immigration and not in the general business sense. This means, willingness on the part of acquiring Co. to continue to offer the position described in ETA 750/I140 under the similar conditions post aquisition or merger. Which seems to be a non-issue in most of the cases

Our new Co.,s attorney's are apparently still talking to USCIS and until they hear from them we are advised to keep our fingers crossed. It is frustrating that when we are continuing in absolutely the same job (including title), at the same physical location, drawing exactly same salary this can still cause uncertainity, thanks to US Immigration System!
 
Company Merger (I140+I485 Filed Concurrently in August 2004 and Pending)

Hello Everyone ,

My company got merged with another company as of today.


My attorney is recommending to do one of the following
1. Refile for I140 with the proper merger documents and requesting CIS
- To pull out the previously filed I140 application
- Attaching the newly filed I140 application with the date of previously
filed I140 application

2. File for Amended I140 with the proper merger documents and requesting CIS to attach the newly filed Amended I140 application with the previously
filed I140 application

3. Don't take any action - There is risk that my application gets denied and I need to refile for I140 once it is denied. This way I can loose 12 months or so.

As per my attorney, the safest option is Option 1. I need your help to help me understand which option will be better for me. I look forward to your valuable suggestions. Is it also possible for you guys to point me any official documentation in this regard.

I140, I485, I131, I765 RD is August 2004
FP Done September 2004
I131, I765 approved September 2004
NO UPDATES on I140 and I485


Thanks for your help
 
PradK, 911

Any developments in your case! Did you amend or refile I140?
I got a notice of intent to deny. USCIS wants my company's (company A) 2003 tax returns. Since my company got bought by company C and further my company made a loss in year 2003, they did not bother to file the tax returns.
Currently my pay stub is still from company A. But I am going to show company C's financials and claim successor-in-interest. I will submit an offer letter from Company C stating that I will be joining them from Jan 1.

Whatever happens I will keep you all posted?

My special thanks to UnitedNations for helping us all!
 
UnitedNation, Thanks once again!
The links really helped me

so far I found two cases that talk in length about successor-in-interest


http://uscis.gov/graphics/lawsregs/admindec3/b5/2004/jan2704_01b5203.pdf

http://uscis.gov/graphics/lawsregs/admindec3/b6/2004/apr2104_04b6203.pdf

I did not look into 2003 cases. Can you pls skim thru the pdf's and let me know if these are the cases you were talking about? or is there something better? If yes, I will continue looking into it.

Also, my Attorney is going to "substitute employer" on 1-140 instead of successor-in-int . She feels successor-in-int might be tough since none of the employees got transfered to the company that bought the assets.
 
Only immigration liabilities

Hi UN,

My Situation:

Labor approved - [I had mentioned to you last week].

My present company [A] is not doing good financially and they didnot pay Tax returns for last 2 years. They are in the process of transferring only "immigration liabilities" to Company B. After which I will be able to file for my I-140 thru Company B.

My Concern:
Can Company B take up only "immigration liabilities" and not Assets of Company A and go ahead with my I 140.
what documents do we need to show from Company B so that there will no RFE's in the future.

Kindly advice.
GCDreamzz.
 
Hi GCdreamz

I am in a similar situation and feel for you. RajaYogi seems to have done some research but he no longer visits these boards.

It is a tricky situation and immigration-law.com in a question asked on December 29/2005 mentions that I-140 gets denied in asset acquisition kind of mergers.

I am awaiting my decision as this is the only lifeline I am left with being from EB-2 India. Following is what I have gleaned from several sources. In all this my current company's lawyer ( and he is from a big company and never had a denial on a single case) is 100% sure of approval on successor in interest.

Let me know if you come across more.

1. The new company should be in a similar location meaning same metropolitan district or your LC is invalid.

2. You should be doing similar or same work in a similar position.

3. Most importantly there should be documentary evidence of Successor in Interest. The successor company should be taking all the assets and liability.

Now here is the confusion. USCIS in a memo in October 2000 stated that it looks for assumption of only immigration liability and not corporate liability. Now this was a memo not a law or binding. So how Nebraska and Texas would take it is difficult to predict.

4. As per one lawyer I consulted, the new company should have existed from the day your labor was filed to prove that they are successor from the day this job was created.

5. As per another lawyer there should some exchange of money to show there is an buy/sell agreement. That money should be more than salaries of all immigrants employes.

http://www.immigrationportal.com/showthread.php?t=219852

GCdreamzz said:
Hi UN,

My Situation:

Labor approved - [I had mentioned to you last week].

My present company [A] is not doing good financially and they didnot pay Tax returns for last 2 years. They are in the process of transferring only "immigration liabilities" to Company B. After which I will be able to file for my I-140 thru Company B.

My Concern:
Can Company B take up only "immigration liabilities" and not Assets of Company A and go ahead with my I 140.
what documents do we need to show from Company B so that there will no RFE's in the future.

Kindly advice.
GCDreamzz.
Click to expand...
 
Thanks a lot bigbang2001 for your quick reply and sharing your information.


bigbang2001 said:
Hi GCdreamz

I am in a similar situation and feel for you. RajaYogi seems to have done some research but he no longer visits these boards.

It is a tricky situation and immigration-law.com in a question asked on December 29/2005 mentions that I-140 gets denied in asset acquisition kind of mergers.

I am awaiting my decision as this is the only lifeline I am left with being from EB-2 India. Following is what I have gleaned from several sources. In all this my current company's lawyer ( and he is from a big company and never had a denial on a single case) is 100% sure of approval on successor in interest.

Let me know if you come across more.

1.The new company should be in a similar location meaning same metropolitan district or your LC is invalid.

Yes, I am in the same district as the LC was filed.

2. You should be doing similar or same work in a similar position.
Yes I will be doing the same job as listed in the Labor

3. Most importantly there should be documentary evidence of Successor in Interest. The successor company should be taking all the assets and liability.

Now here is the confusion. USCIS in a memo in October 2000 stated that it looks for assumption of only immigration liability and not corporate liability. Now this was a memo not a law or binding. So how Nebraska and Texas would take it is difficult to predict.

Here - My new company will not be taking the assets but only will be taking the immigration Liablities - so I am concerned here. But according to my laywer she says its very much fine.


4. As per one lawyer I consulted, the new company should have existed from the day your labor was filed to prove that they are successor from the day this job was created.

Have to check with my employer if that holds true in my case

5. As per another lawyer there should some exchange of money to show there is an buy/sell agreement. That money should be more than salaries of all immigrants employes.
As they are not buying the assets, I am not sure if the contract they sign will be more than the salaries of all immigrats together ..
THIS GETS ME WORRIED AGAIN.


http://www.immigrationportal.com/showthread.php?t=219852
Click to expand...

Thanks for the link - I will keep posted about my situation. As of yet I am waiting for the company process and then I will go ahead with the filing of I 140.

- GCDreamzz.
 
Hi RajaYogi,

Can you please send me also. I have read the thread and you are the person who would have most information on this than a bunch of lawyers.

Thanks

RajaYogi said:
GCDreamz,
Pls see your private message. I have sent you my email address.
Click to expand...
 
Hope things work out for you.

Another nugget of information I got from my attorney was that "Not all assets need be acquired by successor company". Though one has to prove that substantial assets were acquired by the successor company.

- bigbang2001

GCdreamzz said:
Thanks a lot bigbang2001 for your quick reply and sharing your information.




Thanks for the link - I will keep posted about my situation. As of yet I am waiting for the company process and then I will go ahead with the filing of I 140.

- GCDreamzz.
Click to expand...
 
Thanks.
Shall keep you posted about my proceedings.

bigbang2001 said:
Hope things work out for you.

Another nugget of information I got from my attorney was that "Not all assets need be acquired by successor company". Though one has to prove that substantial assets were acquired by the successor company.

- bigbang2001
Click to expand...
 
Ugent Help

Here is my Situation.

I 140/485/AP/EAD applied Jan 10, 2006. AP and EAD approved in March, 2006. The business was sold, and closed its doors in May, 2006.

Both I 140 and 485 are pending for more than 180 days. I understand that to port, I 140 has to be approved, right?

I am on my 6th year H1, and don't have all the options. I called the local congressman's office and here is what they suggested. Is to write a letter explaining the situation to INS, and getting an Employment Verification Letter from my new employer and that he assumes all the immigration related liabilities and wants to continue to with I 140.

Would some one comment on this complicated situation?

What options do I have ?

Thanks. Jadoo85
 
united nations and others please help!!!

Hi,
My company-A got acquired by company-B. However, I have approved LC and I-140 from company-A. Currently on h1b of company-A as EB3 is retrogressed.

Here's my question, my attorney says that that the company merger would mean that I have to start all over again for my green card - file a H1 transfer and apply for new labor under company-B. What are my options ?, the worst part is that I am on 8th year extension. Please help/advice. Thankyou all.
 
Ath very least you have I-140 approved so it gives you a lock on PD. You may file for PERM and a new I-140 and claim for old labor PD.

Talk to your lawyer about in claiming for successor in interest.

Since EB-3 is retrogressed you can not file for 485 anyway so use the time in between to go through new PERM and I-140 route. This is safest option for you.

You are on 8th year with approved I140 and retrogress visa number so you are eligible for 3 year H1 extension.



ravi2patel said:
Hi,
My company-A got acquired by company-B. However, I have approved LC and I-140 from company-A. Currently on h1b of company-A as EB3 is retrogressed.

Here's my question, my attorney says that that the company merger would mean that I have to start all over again for my green card - file a H1 transfer and apply for new labor under company-B. What are my options ?, the worst part is that I am on 8th year extension. Please help/advice. Thankyou all.
Click to expand...
 
bigbang2001, Thanks for the reply.

My attorney said that the acquisation/sale was such that in legal terms it does not qualify for "successor-in-interest".

Can I still use my approved i-140 with the old company and apply for 3 year's extension plus transfer to the new company ?

As for the PD, how do I claim the old date ?
 
You have two issues. One Non immigrant and another Immigrant. Using an approved I-140 to seek H1-B extension from another company is a grey area. USCIS has neither confirmed nor denied. I would chances of H1 extension are good . They can become ven better if you apply for extension along with some documentary proof that a merger happened and your new company is at least taking over immigration liability.

For immigrant visa, you have a strong case for preserving PD. How exactly you do it is I do not know. But search in this forum and www.murthy.com and you will come up several suggestions. The passage for this is much simpler because of quick PERM labor approval and if you are EB-3, you can avail of premium processing for I-140. You can have all this done in 6 months to 1 year time and hope your P.D beceomes current. At that point along with new I-140, you would need to present old I-140 to claim your old P.D when you file for I-485



ravi2patel said:
bigbang2001, Thanks for the reply.

My attorney said that the acquisation/sale was such that in legal terms it does not qualify for "successor-in-interest".

Can I still use my approved i-140 with the old company and apply for 3 year's extension plus transfer to the new company ?

As for the PD, how do I claim the old date ?
Click to expand...
 
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