If your company has recently gone through a merger, acquisition, name change, or other corporate restructuring, you may be wondering whether you need to file new or amended H-1B petitions for your employees.
The answer depends on the type of restructuring.
The Immigration and Nationality Act (INA § 214(c)(10)) provides that an amended H-1B petition is not required solely because of a corporate restructuring if:
- The new company is the legal successor to the original H-1B employer;
- The successor company assumes the rights and obligations of the original employer; and
- The employee’s job terms and conditions remain the same, except for the identity of the employer.
The law at INA § 214(c)(10), codified at 8 U.S.C. § 1184(c)(10) , specifically provides:
“An amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate 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.”
In other words, if the restructuring simply changes the legal entity but the H-1B employee continues in the same position under substantially the same employment conditions, a new H-1B petition may not be necessary.
However, every corporate transaction is different. Changes to job duties, work location, salary, or other material terms of employment may still require an amended H-1B petition. In addition, employers must ensure they comply with all applicable Labor Condition Application (LCA) and other immigration requirements following a corporate restructuring.
Before assuming that no action is required, it is important to have the transaction and your workforce reviewed by experienced immigration counsel. Proper planning can help avoid compliance issues and ensure your H-1B employees remain authorized to work without interruption.
If your business is planning or has recently completed a corporate restructuring, our office can help evaluate whether any immigration filings or compliance steps are necessary.
References
- Immigration and Nationality Act § 214(c)(10), codified at 8 U.S.C. § 1184(c)(10): U.S. House of Representatives – U.S. Code, 8 U.S.C. § 1184.
- Legal Information Institute (Cornell Law School) – 8 U.S.C. § 1184.
Filed under employment