U.S. immigration law provides for approximately 140,000 employment-based immigrant visas per year to qualified applicants. The visas are divided into five preference categories, including multi-national managers or executives, members of professions holding advanced degrees, skilled, professional, religious workers and “other" workers. Spouses and children may accompany or follow-to-join employment-based immigrants.
If a sponsoring employer (petitioner) has a qualifying job opportunity available, employment-based immigration is the option of choice for many immigrants. Such workers often do not have a family petition to rely on, or their petitioner is elderly, and the priority date can be years – if not decades – away from processing. The general rule is that if the petitioner in a family-based application passes away, the petition is no longer valid unless one of several exceptions applies.
Just as in the family immigration process, employment-based immigration can also take on many twists and turns. In today’s business climate, large companies are constantly restructuring, merging and being sold. For small businesses, the road can be even more unpredictable. This article is concerned with situations where a petitioner employer that has started the immigration process for an employee is bought out by another company, and what that means for the intending immigrant beneficiary.
From Job Offer to Green Card
The first step for the many employment-based immigrants is the labor certification. This is a process by which the employer obtains certification from the U.S. Department of Labor (DOL) that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the beneficiary will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Once the labor certification is obtained, the employer then files an Immigrant Petition for Alien Worker, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category. The petition is given a priority number, based on which the beneficiary “gets in line" to wait for an available visa. As of August 1, 2013, immigrant visas for skilled and professional workers are backlogged 4.5 years for most foreign workers. In a perfect world, after undertaking the immigration process on behalf of an employee, the employer continues to exists, remains financially healthy and keeps the job offer open until the third and final step – the Green Card or Immigrant Visa.
Qualifying as a Successor Petitioning Employer
Of course, it’s not always a perfect world. The general rule is that a labor certification only applies to specific employer and a specific job offer. If an employer goes out of business, or no longer can offer the job offer under the terms of the labor certification, the employee will need to find a new employer and begin the process from the start.
However, if a business is bought out, the labor certification can continue to be valid if the new employer is a “successor-in-interest" to the original employer. USCIS interpretation as to what happens when a petitioning employer is bought out has evolved in recent years. Up until mid-2009, USCIS took the view that a successor company would only be considered to a successor-in-interest if the successor company assumes all of the rights, duties, obligations and assets of the original employer and continues to operate the same business as the original employer. This view was based on dated guidance going all the way back to 1993.
An August 6, 2009 USCIS memorandum updated guidance to Officers to acknowledge the fact that business practices have changed. This provided great relief to employers and immigrants. No longer is absolute assumption required on the part of the new company. Officers are to look at three factors in considering wither a valid successor relationship exists:
1) The same job opportunity must exist: including job description, requirements, and wage (although a raise is acceptable).
2) The successor company must establish continual eligibility: all original criteria for the visa classification must be met – including ability to pay the prevailing wage.
3) The successor must fully document the transfer and assumption of ownership.
Successorship Exists! – Now What?
If a valid successor relationship is established, the new employer’s next steps to continue with the immigration application depend on where in the process the application stands at the time of the buy-out:
LC Pending: If the labor certification is still pending, the new employer is a proper successor and the certification will remain valid if there have been no changes in job position or location.
I-140 Pending: if the petition is pending, but the Green Card or adjustment of status have yet to be filed, the successor will need to file an amended I-140.
I-140 Approved: if the petition has been approved, but the Green Card or adjustment of status have yet to be filed, the successor will need to file an amended I-140.
I-140 Approved, and Adjustment Pending for over 180 days: no amended I-140 needs to filed, and the employee can change to a new employer as long as the new job is same or similar to the previous one.
Managing the immigration aspects of business restructuring is a difficult task. This article touches on just a few of many related issues affecting employment-based sponsorship. Because most work visas are employer-specific, changes in a company's structure could affect the foreign national's pending green card application and cause years of immigration processing to be lost. Employers should work with an expert immigration attorney to ensure that the years of waiting are not in vain.