As individuals in business know, acquisitions, mergers and other significant financial dealings can substantially affect aspects of a company. These matters can even disrupt the validity of a PERM labor certification that is pending or approved for a foreign national, unless the new company also acquired the associated interests associated with the original LC application.
In this post we’ll explore how a merger or acquisition typically impacts a PERM green card and I-140. Mind you, it the process may vary on a case-by-case basis and it’s advised to seek help from legal counsel before taking any immediate action.
Company Merger Green Card Impact
When a merger or acquisition occurs, a PERM labor certification application might continue to remain valid assuming that the new company is deemed the successor in any or all interests that the original company possessed, including filed PERM applications. In many scenarios, the new (or merged) company will take over all the assets of the original company including intellectual rights, accounts receivable, contract rights, so on and so forth. In addition to the assets, it will typically also take on liabilities like obligations/ debts, accounts payable, etc. If that’s the case, the merged company will be the successor of the interests owned by the original company and they may choose to continue the filing of the PERM process for foreign nationals.
What Happens Before PERM is Filed?
Often times, a merger may take place prior to a PERM case getting formally filed and/or approved. When that happens then the petitioner will need to demonstrate that the merged company is the successor of the interest that the original company filed. This would need to be proven with substantial evidence in the event of an audit conducted by the Department of Labor. Another very important point is that the advertisements must be run by the employer at the moment of the recruiting period. Likewise, the ETA Form 9089 should reflect the employer at the moment of filing. In other words, 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 the advertisements and name given on the PERM green card application.
Case Example of Merger on PERM Green Card
In this green card company merger example we’ll use Company X and Company Y to illustrate the impact of a merger or acquisition on a PERM on a PERM Green Card & I-140. Say Company X begins the recruitment period for a PERM employment position. For all the advertisements (required as part of the PERM process) the employer is noted as “Company X.” After the advertising recruitment period has ended (but prior to the ETA Form 9089 getting filed) Company X gets acquired by Company Y. Now, the ETA Form is getting filed, except the company that’s listed is labeled Company Y since Company X no longer exists as a result of the acquire. In this scenario Company Y needs to be ready to prove that it is the successor in any or all interests of Company X if for whatever reason they are audited. Due to the complexity of this case an audit will most likely occur so it’s crucial to be prepared with the proper documents.
When the Merger Occurs AFTER the PERM Submission
Not all mergers or acquisitions will occur before the PERM petition is submitted. In many cases it may happen after the PERM petition and ETA Form 9089 are submitted (meaning the employers names will be the same on both). When this situation arises, the employer acquiring the old company should still be ready and prepared to demonstrate that they’re the success or all interests possessed by the original company. If you have more questions related to a green card after merger it’s advised to contact one of our PERM immigration lawyers for more information.
Documents to Establish Successorship
There are a number of documents that may be used to establish Company Y as a successor in the merger or acquisition. Documents include (but are not limited to):
- 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 following year when new company took over
- Any documents related to the transfer of property or business licenses
- Reports or articles announcing the acquisition or merger
In any or all cases, the new company must be able to demonstrate that they are the success in interest even other requirements have been met by the Department of Labor. USCIS still requires supporting evidence when filing an I-140.
USCIS did not always require these procedures to take place, however. In the past it was policy only to accept approved Labor Certifications based on a successor in interest if the acquisition/merger happened after the PERM was approved. Luckily this is not the case anymore and a LC based on a successor in interest can be filed at any point during the PERM process assuming the employer can prove they legitimately acquired the successor company and their assets/ liabilities.
Received a PERM denial after audit and unsure how to proceed? Click here to learn about options, next steps, and how to refile.
Company Merger Green Card Summary
Overall, the entire company merger green card process is quite complex and can pose additional difficulties if even a minor detail is overlooked. For those reason, among others, it’s best to consult a PERM immigration lawyer to get the full scope of your requirements.
We offer highly competitive PERM fees and can walk you through the broad steps during your initial consultation.If you have any additional questions related to the company merger green card process, please contact our offices to speak with a professional PERM lawyer today!