Is a New or Amended H-1B Petition Required?
One common immigration question arising from corporate reorganizations is whether a new or amended H-1B petition must be filed for those in H-1B status.
With respect to an H-1B, it needs to be determined whether a new H-1B petition through new company needs to be filed or whether the new company will update the public access file with appropriate documents regarding the acquisition.
Pursuant to 9 FAM 41.53 N10.3— Validity of H-1B Petition When Company Restructure, an H-1B petition remains valid if a company is involved in a corporate restructuring, including but not limited to, a merger, acquisition or consolidation if (1 The new corporate entity interests and obligations remain the same; and (2)The terms and conditions of employment remain the same.
Under Department of Labor regulations, when an employer changes its corporate structure due to an acquisition, the new employing entity may assume the obligations and liabilities of the previous employer and continue employment under the still valid H-1B approval notice. No new LCA or H-1B filing is required. See 20 CFR § 655.730(e).
Under CIS rules, an amended or new H-1B filing is not required where the new entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner. The new employer is not required to file a new LCA or H-1B with respect to any H-1B employees, even if there is a change in EIN, as long as the new employing entity assumes all LCA and immigration related obligations.
Under Public Law 106-396 - Exemption of Certain Employers from Requirement to File Amended Petitions, amended H-1B petitions are not required when the petitioning employer is involved in a corporate restructuring where (a) the new corporate entity succeeds to the interests and obligations of the original petitioning employer; and (b) the terms and conditions of employment remain the same, except for the identity of the petitioner.
The eligible forms of corporate restructuring may include, but are not limited to, mergers, acquisitions or consolidations. Forthcoming regulations will define the eligible forms of corporate restructuring, and the type of evidence required, including the manner in which that evidence should be submitted for extension of stay requests by the new corporate entity.
Whether a new H-1B needs to be filed or whether new company will accept responsibility of current LCA etc. needs to be determined by their HR/ immigration attorneys.
Andrew M. Wilson, Esq.
Serotte Reich Wilson, LLP