It’s M&A season!  If your company is transitioning due to mergers, acquisitions, or ownership shifts, you’re not alone. When you are embarking on a new phase in your company, you’re probably thinking about corporate structure, due diligence, disclosure schedules, purchase price; however, IMMIGRATION PLANNING IS JUST AS IMPORTANT! There are many immigration-related matters to consider and several pitfalls to avoid!

Successor Requests for Permanent Labor Certification
It is crucial for companies to loop in their immigration provider prior to making any transaction that results in a change in name, ownership, form of entity, FEIN, or merger, acquisition, asset sale, consolidation, etc. In general, a successor company may be able to leverage an approved permanent labor certification from the predecessor company. It is crucial for the successor company to provide enough evidence and documentation of the ownership transfer, company structure, job continuity for immigrant beneficiaries, and most importantly documentation to establish the successor company’s ability to pay the proffered wage in the labor certification. Any Form I-140 Immigrant Petition must be accompanied by such evidentiary documentation to USCIS requesting to use the approved permanent labor certification that the predecessor company filed with the DOL.

Your new successor company, if a new entity entirely, may not have adequate net income to satisfy the ability to pay requirements.  Similarly, if your company is consolidating or acquiring other companies and will have a net loss for that year, your company will also not be able to satisfy the ability to pay requirements.  Remember, if your company is the predecessor, it must satisfy the ability to pay requirements from the time we file the permanent labor certification application to the date of the transfer of ownership; and if it is the successor, then it must satisfy the ability to pay requirements from the date of the transfer of ownership through the issuance of the green card.

For successor-in-interest purposes, the transfer of ownership may occur at any time after the filing or approval of the original permanent labor certification.  If the transfer of ownership occurs before the filing of the PERM application, then there are additional issues that may result in not having a valid successor-in-interest case; if so, then we must refile the Prevailing Wage Application and re-advertise immediately. This highlights the importance of informing ULS of any potential change in corporate structure or ownership as soon as possible so that we can help guide you in the best solution for your immigration cases.

Conversely, if the transaction takes place during the pendency of the labor certification, and there is an Audit, the successor and predecessor companies will both need to provide the DOL with enough evidence and documentation of the ownership transfer, company structure, job continuity for immigrant beneficiaries, and most importantly documentation to establish the predecessor and successor company’s ability to pay the proffered wage in the labor certification. The DOL does not routinely review successor-in-interest cases as that is generally reserved for the USCIS at the I-140 stage. Major changes during the pendency of the 9089 PERM application presents a higher-level risk than waiting until after the PERM is certified to finalize the transfer of assets, liabilities, and immigration obligations onto the successor.

Situations Not Requiring New Petitions
Navigating immigration procedures can be complex, but some changes might not require new Immigrant Petitions, such as changes in petitioner names or new jobsite locations within the same MSA listed on the PERM labor certification. However, it’s crucial to ensure that ownership and job locations remain consistent to avoid complications during immigration processing; otherwise, a new or amended Immigrant Petition will be necessary.

Successor-In-Interest Determinations
Successor-in-interest entities that wish to rely on an approved I-140 Immigrant Petition and PERM Labor Certification filed by a predecessor entity may need to file amended Immigrant Petitions demonstrating a qualifying successor-in-interest relationship and provide comprehensive evidence of ownership transfer and job details. Such documentation includes organizational structures, job descriptions, requirements for immigrant beneficiaries, a copy of the Form I-797 approval or receipt notice, and the ability of the successor-in-interest’s ability to pay the proffered wage.

Additional documentation that the successor-employer must provide to accompany the petition or amended petition to establish its successorship include: an official contract of sale of the acquisition, closing mortgage documents, SEC Form 10-K, audited financial statements, documents related to the transfer of property or business licenses, and reports or articles announcing the merger or acquisition.

Merely taking on some of the functions of a predecessor company is not enough. A true successor company that is eligible and meets the burden to claim continued validity of the original permanent labor certification must assume all of the predecessor’s rights, duties, and obligations.

Merger or Acquisition During I-485 Adjustment of Status
A change of ownership transaction during the I-485 Adjustment of Status stage has the potential to be the safest option depending on the timing of the transaction. If the I-485 application has been filed and pending with USCIS for at least 180 days, the application will become “portable”––the beneficiary worker can choose to work for the successor company as long as the job offer from the successor company matches his green card case. The successor employer may need to only prove that the role or job duties are in the same occupation that were filed with the I-485. “Porting” to the successor company’s job offer will be achieved by filing an additional form––a Supplement J to the Form I-485.

Whenever you are contemplating a change in name, ownership, form of entity, or merger, acquisition, sale, consolidation, etc., please inform us as soon as possible so that we can consult on the steps that need to be taken from an immigration standpoint on all of your cases in the green card process, including PERM 9089, I-140 and Green Card.

Stay informed to navigate the immigration landscape effectively!