Successor in Interest Issues

US Admirer

Registered Users (C)
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.
 
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Implication on H1B: Also, note that if you don\'t already have an EAD, your new employer might be required to file an Amended H1 petition when your original petitioner merges or is acquired. However, if proof of succesor-in-interest exists, an amended H1 is not required.

Here\'s the catch: When an amended H1B petition is required, the alien cannot work for this merged employer until the amended petition is adjudicated.
 
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Beware!! - Keep a copy of all the documentation you send to INS. VSC has recently been citing "lost mail" or "misplaced mail" on responses to RFEs. Since the deadline to respond to RFEs is typically only 30 days, any delays in mail could mean "DENIAL", unless you have proof otherwise.
 
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Just out of curiosity, how would INS find out if the company has been aquired/merged etc unless of course one volunteers the information or if the company has changed names? I am only asking this because my company is planning to spin off my office as a seperate company the name change is not significant (i think they are droping the inc. at the end). However, the big change is that the taxid will change, but how would INS know this? Thanks in advance.
 
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If your payslip shows an employer name different from the petitioner, that sure would raise a red flag. But if the payslip doesn\'t change and all the employer correspondence with INS is still with the same old letter-heads there\'s no way INS would know. But, you have to be careful not to misrepresent facts.
 
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