My comp. was bought after I-485. Now I got RFE. Pls advise.

A

Al VCS0599

Registered Users (C)
A private company that I worked for (some >5 years) and that sponsored my GC was merged with (==bought completely by) a big corporation. It happened AFTER we filed the I-485. BTW my info:

EB3: Other
ND : 05/11/99
EAC: 99-166-
FP : 03/2000
RFE: 07/28

My lawyer said back than and says now that the merger is no problem and the new company becomes the petiotioner automatically after this kind of a \'complete\' buyout. INS didn\'t know about any of this changes in my situation up untill now and (how unfortunate!) now they are asking for 3 paystabs, W2, employment letter etc., saying that they need an assurance that I\'m not likely "to become a public charge".

The question is, what are the chances that after getting my responce on this RFE they\'ll ask us to aply for new I-140 (from the new company)? Do they reject my initial application completely and I start all the process anew? If not, do they allow you to stay in the country (my H1 expires PRETTY SOON - a few month from now)? Do they require a complete labor (re)certification for this kind of situation? (We did write them a letter that my job functions are going to be the same).

It looks like I have a chance of leaving the States, isn\'t it? Pros, please share your info, opinions!
 
No Title

My company too went through two name changes during the processing of my GC.

While only your attorney really knows if the new company is a "successor in interest" to the original company (in which case you are fine), one rule of thumb that you can use is to check if you have a new employee number after the company was bought out. In case you do, it is probably an indication that you would have to get a new 140 approved.

Please note however, that the employee id check is a RULE OF THUMB. I quite honestly do not claim to understand the intricacies of the law that governs company buy outs and name changes. Talk to your attorney.

Wish you all the best!
 
No Title

I got second RFE to prove my company is the still the same (company name changed from a to b to C). I heard some other employyes from my company got the same query
 
No Title

Hi A VSC0599,

I am in the same boat as you. My company was completely
bought out by another after the 485 was filed. I was told
repeatedly by my lawyer that it was OK as long the the new
company completely bought out the old one and that your
job description remained similar/same. But I am not 100 % sure
as there are different types of mergers and I don\'t know if
this holds for all the different types of mergers. All I can say is
to go with what your lawyer says (because my lawyer says
the same thing).

 I believe (and someone can correct me if I am wrong) that
in a few cases in NSC(?), the INS, when it saw that the company
name on the I-140 was different from the I-485 due to the
buy-out, and it sent in an \'Intent to Deny.\' The applicant was allowed
to file and amended I-140 in response to the \' Intent to Deny.\'
This I-140 from the new company is (I believe) processed
faster since there is a I-485 pending, and the 485 is approved.
 My guess is that this is the worst that can happen.

Again, I am not a lawyer, so get all the inputs you can and
PLEASE post your entire experience once you are done. I think
there are many of us in the same boat.

thanks

mo\'waiting
 
No Title

OK, if I need to file new I-140 then prior to that I\'ll have to file new labor certification (that\'s what I-140 is based) right?
 
No Title

Hi Al VSC0599,

I am not clear on the details but I believe that the labor cert.
is not required. I am only commenting from what I read on
this forum 3 months ago. I think this happened to some people
at NSC. You may want to try posting the question it in that discussion
group. I recall that they got an \'intent to deny\' and were also advised
 that an amended I-140 could be filed in response. Someone said
 that the whole process was over in about 2 months. So I
am assuming that Lab. cert. was not required. However, please
do check around on this... I believe I am correct about what
I worte, but I dont want to raise false hopes. And please do
post your experiences once you are done with this. Good luck.

mo\'waiting
 
No Title

However back to the original question...
If one has to file a new I-140, what happens to the EAD\'s used by the applicant and husband/wife of primary applicant??????????
 
No Title

Hi Al VCS0599,

The recent posting by VSC/485 titled: RFE Update (StupidestRFE ever) gives us a clue as to what VSC expects in cases where the company is acquired. Through some mistakes on the part of his lawyer & also VSC, he was asked to prove \'successor-of-interest for his company
as a result of the acquisition\'. In his case, there was no company acquisition at all (since his is an NIW); but VSC, having made a mistake, asked him for proof of \'successor-of-intrest\'. This gives me strong reasons to believe that this is what VSC will ask for in cases where your company is acquired.(I suspect that if \'successor-of-interest\' is proven, then no I-140s are required). I think we may
have the answer .......

mo\'waiting
 
No Title

Hi mo\',

Thanks for the info. Yes, my lawyer finally \'testified\' that he is writing to VSC some letter about the new company\'s being \'successor-of-intrest\' to the old one. But I\'m not sure how the VSC will react on it for it\'s the letter from my lawyer, not company\'s.

I\'ll post what will be my experience. But still to the original question: if you\'re not NIW or EB1 how you can submit new I-140 without the L.Certification. And if you do have to file the LC, what kind of status you\'re in? It all seems kind of borderline and tricky.

BTW I tried to look for the NSC discussion you were referring to. If you don\'t mind: Apprx. what month was that? was it on this site? was it under the "Chat group (OLD)" link? Please advise if you have more info on that discussion. Sorry if I seem to be kind of lame, but really didn\'t find it yet.
 
No Title

Hi Al VCS0599 ,
I recall seeing those posts in the old chatboard about 1.5 to
2 months ago. Some may be under the title: intent to deny.I\'ll check and post more if I find useful info. Please see the private e-mail I sent to you.
mo\'waiting
 
No Title

In my opinion, send all the requested documents and a letter from you company explaining the situation. In case they are not satisfied, you will have to file a new I-140. That\'s the position I am in right now. My company merged and changed its name before I applied my I-485 but after my I-140 was approved. In June 2000, I received RFE asking me to file a new I-140 with the new company as the petitioner. I mailed it in July 3rd week. The automated message has not changed till now. I will keep updating. Hope this helps.
 
No Title

Hi AKP,
With regard to the new I-140 they asked you to file, what was done differently?
Were you asked to re-do lab. cert (as Ai VSC0599 had enquired) or were you
able to re-use the old lab. cert ? Also, do you know if the amended I-140
will be processed faster since you have an I-485 pending?
mo\'waiting
 
No Title

Nothing was done differently. My lawyer just filed another I-140, but now with the new company as the petitioner. The RFE did not mention anything about labor cert. I think that is because labor cert. is all about you and your qualifications and your job requirements. It does not matter much about the company. But I-140 is all about the company and practically nothing about you. I am doing the same job but for a different company ,though it was a merge. So, a new I-140 was asked for in my case and it said that it should take anywhere from 14-60 days for the I-485 approval. I think the new I-140 will go thru a different processing route which should be much faster - just a guess. I mailed my new I-140 (along with the RFE) on July 19th. The message still did not change. I called yesterday and they confirmed that they received my RFE on July 25th. Now it is a waiting game again.
 
No Title

AKP, thanks a lot for the details. I too think that this I-140 will be processed faster since there
is a pending I485; and also, your I-140 goes directly to the 485 inspector who
issued the RFE. mo\'waiting
 
No Title

olks thanks for all the information on this thread.

I have a similar situation with a twist. My company is not being bought out but my particular division is being outsourced to a vendor.
The Company Taxid on my paystub will definetely change.
I am currently waiting on my 485. RD 03/2000

I think I may have to file a new I140 and feed its details to the 485 process before VSC starts on my 485. Do I need a new LC for this?
 
No Title

Successor-in-interest issues: Here\'s some literature on INS\' interpretation of Successor-in-interest as a result of Mergers and Acquisitions. Hope this clarifies a lot of your questions about when to file a new I-140 and LC.

In March 1992 INS entered into an agreement with DOL on how to handle changes or amendments to Labor Certifications once they are issued. According to the agreement most such changes are to be made by the INS.

Subsequently, in April 1992, INS issued additional instructions stating, among other things, that INS will make the determinations on Succesorship of interest in I-140 immigrant petitions. If the petitioner has been bought-out, merged, or had a significant change in ownership, the successor-in-interest must file a new I-140 petition.

To affirm the validity of the initial I-140 and the labor certification, the petitioner must establish that it is a successor in interest, and as such must assume all the rights, duties, obligations and assets of the original employer and continue to operate the same type of business as the original employer.

The successor in interest has the burden of proof and must submit documentation showing change of ownership. The new I-140 application should include copy of initial I140 approval and labor certification and supporting documentation. The new employer must also show that it is able to pay the proferred wage.

If the petitioning employer\'s location changes. the validity of LC might be affected. If employer moves within the same SMSA, old LC remains valid. However, if the employer moves outside the SMSA, old LC is invalid.
 
You must log in or register to reply here.
Top