A corporate merger or acquisition can change the entire structure of an organization and impact its workforce. In US immigration and labor laws, merger/acquisition can impact a foreign employee’s green card application process, especially at the PERM labor certification and the I-140 submission stage.
How Does Merger or Acquisition Affect Green Card Application?
When a merger or acquisition happens, two factors may determine its impact on a pending green card process. The first factor is whether or not the new owner can meet the requirements for what is known as “successor-in-interest” (SII). The second factor is the stage of the green card application when the merger or acquisition takes place.
How is Successor-in-Interest Determined?
The United States Citizenship and Immigration Services (USCIS) considers several factors in determining whether or not the new owner in an organization merger can be deemed an SII employer. This largely predicates on the employer’s ability to prove that:
– The green card applicant employee is being offered the same job opportunity offered by the original employer in the PERM labor certification application.
– They are eligible to act as green card petitioner for the employee, with proofs such as evidence of the ability to pay the beneficiary’s wages.
They can fully describe (with documentary evidence) how they assumed the original company’s ownership.
Keep in mind that USCIS decides every acquisition/merger issue on a case-by-case basis. So, other case-specific factors may also play a role when the agency makes such a decision.
Green Card Application Stages and Successor-in-Interest Eligibility
If the new employer can establish the successor-in-interest eligibility, then the petitioner (employer) and the beneficiary (employee) may leverage that to continue the green card application process, depending on its current stage.
Merger After PERM Approval
If the merger happens after PERM has been approved and successor-in-interest is established, USCIS would allow the new employer to use the approved PERM labor certification to proceed with the case and file a Form I-140 for the employee.
Merger During Form I-140 Petition
If the Form I-140 petition is still pending when the merger happens, USCIS will need to be notified in writing. However, if the I-140 has been approved, the SII employer will need to file an amendment. With the approved I-140, the employee stands a good chance of retaining their original priority date.
Merger During From I-485 Petition
If your I-140 has been approved and you are already at the stage of I-485, Adjustment of Status, then the merger should have little or no impact on your green card process. For many reasons, this can be the safest stage of all green card cases relating to a merger. For example, your pending petition should remain valid as long as the SII employer meets up with all the USCIS requirements, including filing an amendment where necessary. Also, you MAY decide to change the job and move to another employer without losing the validity of the pending green card process.
What Happens If Successor-in-Interests Requirements Aren’t Met?
If the succeeding employer does not meet the requirements to be an SII employer, this can affect the green card case in various ways – again, depending on each case’s uniqueness.
NOTE: It is, however, important to note that merger is a very tricky aspect of immigration and labor laws as regards the green card application process. So, it is important to work with an immigration lawyer when dealing with the case. In fact, we advise the beneficiary to seek independent counsel as the petitioner’s interests may not align with the beneficiary’s interests, and there may be action needed on multiple fronts. Immigration law is like every other legal scenario – different interpretations may apply in similar cases due to each case’s peculiarities.
