When foreign nationals apply for H-1B visas, their employers warrant the position follows the federal regulations that control foreign workers in the U.S. These businesses have submitted information regarding the location, responsibilities and wage associated with the position. These details are crucial to an H-1B application being approved, as U.S. Citizenship and Immigration Services has to be sure the foreign national will have a fair wage at a safe job and that the company isn't using the H-1B visa to break up a strike.
What happens if the employer changes?
Mergers and acquisitions mean a change to the employer, and possibly a change to the terms of the foreign national's employment, which can have serious implications to an H-1B visa application or a current H-1B visa.
The Labor Condition Application
If a merger or acquisition creates a new employer while an LCA is pending, the new employer becomes the successor-in-interest, and will need to wait until the U.S. Department of Labor makes a decision because the DOL doesn't allow modifications. If the LCA is accepted, then the new employer can continue with the employee's application and file a Form I-140, Immigrant Petition for Alien Worker, with USCIS along with proof the new employer is the rightful successor-in-interest.
However, if the new employer will have the foreign national work in a different location that is not in the same statistical metropolitan area, than it will need to submit a new LCA with that new location's information.
"A successor-in-interest will have to file a new Form I-140."
In general, a successor-in-interest will have to file a new Form I-140, even if the previous form is pending or has been approved. Form I-140 is for the purpose of a foreign national worker to become a permanent resident of the U.S. As it's generally filed by the employer, USCIS needs to have the actual employer's information.
The H-1B Petition
While the LCA and Form I-140 may need to be refiled by a new employer following a merger or acquisition, pending H-1B petitions do not need to be resubmitted. The successor-in-interest assumes all of the liabilities of the H-1B petitions and continues with the process.
The successor-in-interest may need to amend a petition if there are changes to the foreign national's position, such as changes to location that would require a new LCA.
How INSZoom can help
Mergers and acquisitions frequently lead to corporate and staff restructuring, layoffs or new positions. With all of the changes and tasks assigned to the human resources department, it can be hard to keep track of H-1B applicants and where they all are in the process.
INSZoom can help successors-in-interest know exactly what's going on with foreign national workers, and determine if any forms need to be amended or resubmitted to a government body.
Instead of manually pulling files, the HR department can run a report regarding current and potential H-1B workers, and can see in an instant what work lies ahead.