How Corporate Changes Impact PERM
Corporate changes before, during, and after the PERM process have some difficult requirements to consider, and we’d need to know more about the actual merger/acquisition and restructuring to properly advise. However, there are some ground “rules” and considerations to know in advance when corporate changes are underway.
Changes before the PERM is certified/ I-140 is approved (e.g. during PERM preparation, or while PERM is pending)
- If a merger of stock acquisition where legal entity is preserved occurs (only ownership has changed, but FEIN/employer remains the same), then there is no impact, and no action is required.
- If the legal entity of the employer changes to a different entity/FEIN while PERM is pending, then you must start from the beginning. The prevailing wage and recruitment is lost; this can have major impact on nonimmigrant timing issues!)
- Asset purchases must be carefully reviewed. These transactions can often be piecemeal, and the legal entity may not be preserved, necessitating a new PERM.
- Note: If the acquisition and/or merger occurs prior to the PERM filing, there cannot be any type of discrepancies between the employer’s name on recruitment advertisements and the name given on the PERM green card application.
Changes after I-140 approval
- If a merger or acquisition occurs after I-140 approval, and there has been no change in sponsoring legal entity (e.g. change in ownership only), then there is no impact or action required.
- If there is restructuring after I-140 approval and it results in a change of the employee’s sponsoring legal entity, you will need to determine whether the new entity is considered a “successor-in-interest” (SII) employer. If it is not, the new employer will have to start the green card process over from the very beginning.
- For purposes of the green card process, a new employer entity will be considered a successor-in-interest if:
- The job opportunity is the same as the job opportunity listed in the labor certification (position, wage, geographic area remains the same or similar);
- The new entity establishes its eligibility as a successor-in-interest in all respects, including providing evidence of the predecessor’s ability to pay the employee the offered wage as of the date of the filing the (PERM) application;
- The new entity is able to describe and document the transfer and assumption of the ownership of the predecessor’s entity (e.g. include corporate restructuring documents to show eligibly for SII).
- If determined that new entity qualifies as SII, you will file an amended I-140 petition with USCIS. The new I-140 form will recognize the successor by listing the successor’s name as the petitioner.
- There are a number of documents that may be used to determine a company as a successor such as:
- An official contract of sale of the acquisition
- Closing mortgage documents
- A Security Exchange Commission (SEC) Form 10-K
- Audited financial statements from the original company and the following year when the new company took over
- Note: if employee’s AOS has been pending for more than 180 days with current priority date, no action is required regardless of whether or not SII exists.
- If the successor company is unable to meet the successor in interest requirements, we recommend speaking to an immigration attorney to figure out the next steps. The uniqueness of each case causes various changes.
If you have any questions regarding corporate changes and the PERM process, please contact our office today. Our team of skilled attorneys are readily available to assist in any way we can.