Immigration Consequences of Corporate Changes: What Every Business Lawyer Should Know. Presented by Sarah E. Buffett, Esq.

Transcription

1 Immigration Consequences of Corporate Changes: What Every Business Lawyer Should Know Presented by Sarah E. Buffett, Esq.

2 Speaker Intro/Bio SARAH E. BUFFETT Sarah Buffett is a partner in the Charlotte office of Nelson, Mullins, Riley & Scarborough LLP. Experienced in advising clients on immigration-related corporate agreements and nonimmigrant consular processing, Ms. Buffett routinely counsels clients on nonimmigrant work visa and employment-based permanent residence legal strategy. She also counsels clients on I-9 completion, retention, related employer sanctions and audits, and conducts immigration due diligence on corporate transactions. She also defends clients in worksite investigations by Immigrations and Customs Enforcement (ICE) and is a frequent national lecturer on I-9 compliance and business immigration.

3 PART I: BASIC TERMINOLOGY

4 Basic Terms CIS (formerly INS) Nonimmigrant Immigrant Visa Status I-94 Card Overstay

5 Citizenship & Immigration Service U.S. Federal Agency regulating immigration issues CIS does not issue visas; visas are issued by U.S. Consulates abroad ( Cis ) Most nonimmigrant applications are filed at one of four CIS Service Centers Vermont, Texas, Nebraska, California

6 Nonimmigrants Nonimmigrants are visitors to the United States for temporary purposes Examples include: B-1 Visitors for Business F-1 Students L-1 Intracompany Transferees H-1B Specialty Workers O-1 Extraordinary Workers 6

7 Immigrants Immigrants = Permanent Residents = Green Card holders A Permanent Resident ( green card holder) is a non-u.s. citizen who has been given permission to live permanently in the United States Permanent Residency is not Citizenship

8 Status Status is the critical issue for nonimmigrant individuals in the United States Status is the visa classification and date written by the Immigration inspector on an I-94 CARD when an individual enters the United States That date governs how long the individual may remain in the United States 8

9 Visas A visa allows the holder to present him/herself for inspection to enter in the United States For H-1B, O-1 and some L-1 petitions, the applicant must first obtain approval from CIS to obtain a visa For L-1 blanket, E1/E2 and B-1 applications, the applicant can obtain a visa without CIS preapproval

10 Status vs. Visa Status is not a visa An individual admitted to the United States with an H-1 visa has H-1 status CIS may also grant status through a Change of Status If you are not in the United States, you do not have status If you are in the United States you may have valid status but an expired visa But, if you have a valid visa but expired status, you are unlawfully present

11 PART II: ISSUES SPECIFIC TO CORPORATE CHANGE

12 Mergers/Acquisitions CIS must be notified of change in ownership or EIN for L, O and E Visas H-1B sponsorship can be transferred to new entity at deal close Company Name changes may impact travel and visa processing

13 Divestitures E and L Visa holders primarily affected H visa holders will require new documentation, confirmation of terms of employment Layoffs affect both visa holders and the Green Card process

14 Name/EIN/Location Changes Change in EIN is considered a new company all visa holders will require new visa petitions, excepting H-1B (possibly). Changes in the Company name will affect travel options for visa holders, new visas may be acquired Changes in location for H-1B workers must be approved by CIS before the location change is made

15 PART III: DUE DILIGENCE & PRE-CLOSING PLANNING

16 Identifying Immigration Issues Including questions regarding visas, I-9 compliance and immigration investigations in the due diligence is key to spotting issues early Immigration Due Diligence questions and checklist handout Consult with immigration counsel early, identify affected employees

17 H-1B Closing Documents The succeeding company must execute a statement at deal close that it is accepting all of the responsibilities and liabilities of the H-1B employees from the previous entity ( M & A LCA Memo ) To prepare this document, you must have the name of each employee, the labor condition application number that governs their employment, and dates of validity. Once executed a copy should be given to each employee to carry when traveling Immigration counsel should be informed of closing date, when M & A LCA memo is executed, provided copies

18 Communication Is Key Once employees hear rumors of corporate changes, they panic about the effect it may have on them this is even more true of visa holders Identify visa holders, ascertain how the changes will affect them, coordinate with immigration counsel on the strategy to address and communicate to the employee early in the process.

19 PART IV: VISA-SPECIFIC ANALYSIS OF CORPORATE CHANGES

20 The H-1B Visa: Specialty Occupations A specialty occupation is one which requires the application of a particular body of knowledge commonly held by professionals (i.e., scientists, computer programmers, accountants) 20

21 H-1B Process Approval by U.S. Dept of Labor of Labor Condition Application (LCA) attesting to payment of prevailing wage for position and working conditions offered. Petition (including LCA) filed with CIS Service Center Upon Approval, Foreign National applies for Visa at US Consulate Abroad

22 H-1B Analysis H-1B Visas are employer, location and job specific Changes that require a new filing with CIS: location, decrease in pay, job duties/title Optional filing: changes in ownership or name 22

23 H-1B Rules Must have M & A Memo completed at close Provided to visa holders for travel, filed with extensions/amendments Material changes to job (location, salary, job duties) must be approved by CIS before they occur

24 E-2 (TREATY INVESTOR) Visa The investor, either a real or corporate person, must be a national of a treaty country If the nationality of the US company owner changes, they may lose the ability to employ persons on E visas.

25 E-1/E-2 Visas TREATY TRADERS AND TREATY INVESTORS The Immigration and Nationality Act provides nonimmigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital.

26 E Visa Impact of Corporate Change Only nationals of the parent company/investor or trading partner are eligible for the visas If the nationality of the owner changes, E visa eligibility disappears Nationality of publicly traded companies determined by primary location of listing, or market with the highest trading volume

27 THE L-1 VISA: Intracompany Transferee Managers (L-1A) or specialized knowledge employees (L-1B) who have worked for the company abroad for one year who will be transferred to the U.S. entity. 27

28 THE L-1 VISA: Intracompany Transferee (Cont.) Executive, managerial, or specialized employees entering the U.S. to continue employment with the same employer or a subsidiary/affiliate company abroad. Requirements: Must have worked for the parent company, a subsidiary or an affiliate abroad for one (1) year in the last three years. L-1A (executive/managerial) visas available for a maximum stay of seven (7) years. L-1B (specialized) visas available for a maximum stay of five (5) years. L-2 visas are available for spouses/children of L-1 visas holders, and L-2 spouses can receive work authorization (EAD card).

29 L-1 Visa Holders Affected by Corporate Change If the US company is no longer related to the companies abroad, there may no longer exist a qualifying parent/sub or affiliate relationship If the entity abroad where the L-1 visa holders former worked is no longer operating, the Company may lose the ability to sponsor workers from that entity

30 TN: Professionals Under NAFTA Available only to citizens of Canada and Mexico Must be a profession on NAFTA Professional Job Series List, ex: Management Consultant, Computer Systems Analyst, Economist Applicant must possess the specific criteria for that position usually Bachelor s degree in that field TN status is only issued for one (1) year at a time, renewal can be acquired via CIS in three (3) year increments There is no annual limit on TN admissions

31 TN s and Corporate Change CBP (Customs and Border Protection) must be notified in writing anytime the sponsoring company s name, location or ownership changes Notice can also be effected by filing amended petitions with CIS

32 O-1 Visas Extraordinary Ability Available to individuals with extraordinary ability in the sciences, arts, education, business, athletics, or motion picture/television. Extraordinary ability is defined by CIS as an individual that is one of only a small percentage who have risen to the very top of their field. O-1 visa petitions require a showing of professional excellence, national or international recognition in their field of specialty, and other indicators of their expertise. O-1 visas are available in three (3) & two (2) year increments, with no maximum stay limitation. O-3 visas are available for spouses/children.

33 O-1 Visas and Corporate Change CIS must be notified of (and approve) any changes in the O-1 sponsors name, location, ownership or material changes in the job offered.

34 J-1 Trainees More than a dozen different types of trainees exist, from camp counselors to foreign medical graduates Most common for U.S. businesses is the J-1 Business Trainee May enter U.S. for on-the-job training with U.S. employer on J- 1 visa for up to 18 months Must apply for J-1 with a sponsoring program. Sponsor will issue its certificate of eligibility that trainee takes to the U.S. Consulate to apply for J-1 visa. Must possess 4-year degree + 1 year of experience or no degree + 5 years of experience.

35 J-1 Trainees (Cont.) The J-1 sponsoring organization must be notified of and approve any changes in the host company s name, location ownership or changes to the training plan The trainee may be issued a new certificate of eligibility to reflect the changes (DS-2019)

36 PART V: IMPACT OF CHANGES ON THE IMMIGRANT VISA ( GREEN CARD ) PROCESS

37 What is a Green Card? Green Card = Permanent Resident Status Ability to work for any U.S. employer While in the process, recommend generally maintain NIV status

38 What is Labor Certification? Required for all green card filings except mgrs/execs who have worked for the company abroad for 1 yr or more and are currently in managerial capacity Attestation that no U.S. workers are qualified and willing to take job offered to alien Job is prospective Once certified by U.S. Department of Labor, employer may file green card application for employee with CIS

39 THE CURRENT GREEN CARD PROCESS

40 Step One: Prepare initial documentation Step Two: Recruitment for position Step Three: PERM Case filed online with U.S. Labor Department Step Four: I-140 Petition filed with CIS Step Five: I-485 Petition filed with CIS 1 Year + Consular Processing

41 PERM (Labor Cert) IS APPROVED NOW WHAT? I-140 (Immigrant Worker Petition) can immediately be filed. I-485 (Adjustment of Status Petition (AOS)) may be concurrently filed if case is not retrogressed AOS applications grant work, travel permission Once AOS pending for 6+ months, applicant may work for another employer in similar capacity

42 What is Retrogression?? Most LC applicants are currently subject to a backlog ( Retrogression ) in Immigrant Visa numbers Retrogression delays when applicant can proceed with final step of green card process (AOS or Consular Processing) Retrogression based on applicant s nationality & employment category of the position (i.e. EB-2 or EB-3)

43 Impact of Corporate Changes Corporate Changes while the PERM/Labor Market test is occurring or pending may require a new test Changes that Occur after the PERM is approved and before or while the I-140 is pending may continue if the new entity qualifies as a successor in interest Must assume all of the immigrationrelated liabilities of the previous company

44 Portability If the new company does not qualify as a successor in interest I-485 must be pending 180 days Job must be same or similar Even multinational managers qualify

45 PART VI: POST CLOSE REQUIREMENTS & RECOMMENDATIONS

46 Requirements Notification to CIS for L, O Visa holders, possibly H as well, if material changes Border notification for TN s E strategies and communication to visa holders and Consulate I-140 filings as successor in interest and use of portability strategy

47 Recommendations Prepare documentation of corporate changes for H visa holders to show when they travel Communicate impact of changes to affected visa holders verbally and in writing, have new strategies ready to roll out if needed.

48 Please Contact With Any Questions Sarah E. Buffett, Esq. Bank of America Corporate Center 42nd Floor 100 North Tryon St. Charlotte, NC (704)

49 This presentation is intended to inform viewers of general rules regarding U.S. Visa & immigration policy. It should not be considered as providing conclusive answers to specific legal problems. U.S. visa policy changes regularly. We recommend that you contact our Visa & Immigration team with any questions or concerns about a particular matter.