Viewpoint: Consider the Immigration Effects of M&As

​There are myriad issues created during corporate mergers and acquisitions (M&As), and many affect foreign national staff's legal presence and ability to work in the United States.

Most employment-based nonimmigrant visas (NIVs)—unlike permanent green cards—limit the foreign national to working only for the company that obtained authorization to employ the person. Four of the most common NIVs are the H-1B, L-1, TN and E-2.

H-1B Visas

H-1B visas are used to employ professional-level foreign nationals in specialty occupations—such as accountants, computer systems analysts, engineers, scientists and teachers—in the United States.

L-1 Intracompany Transfer Visas

The L visa category is used to transfer foreign employees of qualifying organizations to the United States to continue employment with a parent, branch, subsidiary or affiliate of their foreign employer in a managerial, executive or specialized knowledge capacity. An example would be a U.S.-based company's France branch transferring someone in this capacity to the U.S.

TN Visas

Citizens of Mexico and Canada are eligible to work in specific professional-level occupations in the U.S. under the provisions of the United States-Mexico-Canada Agreement (USMCA). The list of professions specifically qualifying for TN visa status includes biologists, chemists and engineers.

E-2 Visas

E-2 visas are used to employ individuals who have the same nationality as the company employing them in the U.S. in either management or essential skills positions. Think a Japan-based company's U.S. branch employing Japanese nationals for these jobs.

Workers in these visa categories can be affected differently in the event of a corporate transaction.

In general, if a foreign national is employed through an NIV and the employer changes by way of an M&A or corporate restructuring, the new employer must obtain approval of a petition to the U.S. Citizenship and Immigration Services (USCIS) before the person is authorized to work for that company. If the person's legal presence is tied to that employment and the employment ends, the person is at risk of falling out of lawful status in the United States.

Retention of H-1B Status Following Corporate Restructuring

Filing a new H-1B petition is generally not required during a corporate restructuring when the acquiring company is a successor-in-interest. However, this does not apply to an asset purchase or other transaction that does not involve a merger, acquisition, consolidation or spin-off.

When an employer undergoes a change in corporate structure, that successor employer must maintain a public inspection file containing the following:

• Each affected labor condition application (LCA) number and its date of certification.
• A description of the new employing entity's actual wage system applicable to H‑1B workers who become employees of the new employing entity.
• The Federal Employer Identification Number of the new employer.
• A sworn statement expressly acknowledging the company's assumption of all obligations and liabilities reflected in each certified and still effective LCA filed by the predecessor entity. This statement must include the company's agreement to: 1) abide by the Department of Labor's H-1B regulations applicable to the LCAs, 2) Maintain a copy of the statement in the public access file, and 3) Make the document available to any member of the public or the U.S. Department of Homeland Security upon request.

In the event of a corporate change of employer that does not involve a merger, acquisition, consolidation or spin-off, such as an asset purchase, a new H-1B petition must be filed with the USCIS. However, the new employer can take advantage of H-1B portability, which allows an H-1B worker to immediately commence employment with a new employer as soon as the new employer files an H-1B petition on that person's behalf.

L-1 Visa Issues

The L-1 visa program is based on the corporate relationships between the employee's foreign employer and the company that wants to employ the worker in the United States, making portability available only for those transferring to another member of the same corporate family. The worker would also still have to satisfy the other requirements for L-1 status—that is, previous employment abroad as a manager, executive or in a specialized knowledge position, and similar proposed employment with the new employer. If that relationship no longer exists, the employee will not be eligible for L-1 status.

E-2 Visa Issues

Since eligibility for E-2 status is based on the nationality of the U.S. employer and the employee, a corporate transaction would have to result in the surviving company keeping the same nationality as the worker.

If, using the example above, the Japan-based company's U.S. branch was no longer Japanese-owned, its E-2 employees would no longer be eligible for that status and would become unable to work for the successor company.

TN Visas

TN workers who experience a change in employer brought on by a change in ownership would require a new application submitted to the USCIS or to the U.S. Customs and Border Protection at a port of entry.

I-9 Issues

In the context of a corporate reorganization or sale, the new employing successor entity may rely on the I-9 Employment Eligibility Verification forms completed by the predecessor. A successor employer is: 1) the same employer at another location, and 2) an employer that continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets.

Because the new employer is liable for any erroneous, incomplete or missing I-9s, many will audit the I-9s in order to ensure there is a current and accurately completed I-9 for each employee.

Conclusion

Those who don't consider the effects of mergers and acquisitions on the immigration status of foreign national employees do so at the peril of their companies. Ignoring these issues can often lead to an inability to continue to employ these workers and, in some cases, the inability of the workers and their families to remain in the United States. Those engaged in these transactions are best served by reviewing these areas as part of their due diligence.

James Aldrich is an attorney with Dykema in Bloomfield Hills, Mich., where he heads the firm's immigration team.