Re: Merger Issue
Please find below some standard information on acquisitions and mergers.
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.
Hope it helps,
Lahari
