As the immigration debate heats up, the Department of Homeland Security, through its enforcement division, Immigration and Customs Enforcements (ICE) has undertaken a massive new enforcement effort directed at employers. The focus on enforcement is clearly evidenced by the rising number of high profile worksite raids, audits and investigations. This has resulted in significantly increased administrative, civil penalties and criminal prosecutions resulting from worksite violations. Based on the recent trend, employers should take steps to ensure that their “house” is in order as the government has made it clear that it intends to come “knocking at the door.”
he 1986 Immigration Reform and Control Act (IRCA) prohibits employers from knowingly hiring or continuing to employ unauthorized workers. All U.S. employers are responsible for verifying, through a specific process, the identity and work authorization eligibility of all individuals, whether U.S. citizens or otherwise. To comply with the law, employers are required to complete an Employment Verification Form I-9 for all new employees hired after November 6, 1986.
Wolfsdorf Immigration Law Group provides complete information, assistance and training to develop comprehensive systems to ensure compliance with immigration regulations. This includes I-9 compliance, developing corporate immigration compliance programs and representation in government audits and investigations. In addition, our team of professionals assist with internal audits to identify immigration violations, minimize the potential liability for past violations and assist with training staff to avoid future problems.
Contact us for information regarding I-9 immigration compliance training, conducting an internal audit or for assistance with developing an immigration compliance program that meets government standards
Due Diligence Mergers / Acquisitions / Corporate Restructuring
Mergers, acquisitions and corporate restructuring present special challenges for U.S. employers intending to retain key foreign workers who hold various nonimmigrant visas (e.g., H-1B, L-1A, L-1B, E-1, E-2, TN and E-3), or are in the process of obtaining U.S. permanent residence. Different notification and amendment rules apply to different visa classifications. We assist employers in devising due diligence procedures to address immigration related consequences of corporate reorganizations, consolidations, etc. Some examples of these consequences are:
Changes in the ownership structure of H-1B employers generally do not require the filing of a new or amended H-1B petition so long as the new entity assumes the duties and liabilities of the original employer, including all Labor Condition Application (LCA) and immigration-related obligations, and the terms and conditions of employment remain the same. In instances where a new entity is the result of a merger of the original employer with another company, an amended petition is required. Where a merger, acquisition, or corporate restructuring results in changes requiring a new LCA, an amended petition may be required.
Employers of L-1 intracompany transferees undergoing reorganization must file amended L-1 petitions if the original “qualifying relationship” has been disrupted but the new entity maintains a qualifying relationship with at least one entity abroad. However, if both the sponsoring entity and the employer abroad have been acquired by a third entity, and their qualifying relationship remains unchanged, an amendment would likely not be necessary. Finally, where a qualifying relationship is altered, such as where a sponsor is acquired by an entity with no overseas affiliations, the L-1 petition is subject to revocation, and the beneficiary must consider other visa options.
The key consideration with E-1 and E-2 treaty visas is the nationality of the owners of the new entity. An E-1 or E-2 visa holder must have the same nationality as the owners of the new entity or the eligibility for the visa classification is lost. Short of this issue, USCIS rules envision amendments where the original employer undergoes fundamental (substantive) changes, and otherwise impose reporting requirements to address nonsubstantive changes.
In the immigrant visa and related contexts, the successor entity must assume “substantially all of the rights, duties, obligations, and assets” of the predecessor company and this showing is typically made at the I-140 immigrant petition stage. Different sets of rules apply during the labor certification process, each dealing with pre-submission, post-sub mission, and post-approval phases. Individuals qualifying under USCIS’ green card portability provisions may not be required to file new or amended I-140 petitions and are generally able to preserve permanent residence benefits without regard to “successor-in-interest” rules.