Fill and Sign the Key Immigration Considerations during Mergers and Form

11A.05 Form: Immigration Due Diligence Guidelines and Individual Considerations The following is an overview of suggested inquiries related to foreign nationals for the due diligence team, with specific considerations for the effect of a corporate transaction upon specific immigrant and nonimmigrant employees. A. Initial Inquiries into Employee Status1. The due diligence team should determine the number and identity of foreign employees at the target company. 2. The due diligence team should evaluate which of the foreign employees will continue to be employed after the transaction has taken place. 3. The due diligence team should gather information for each of the foreign employees that the target intends to retain. 4. The due diligence team should review the status of each employee and determine what needs to be accomplished before the transaction to ensure that the employee's status will remain valid and the company will remain qualified to employ such individuals. B. Specific Considerations for Maintaining Employee Status 1. Ensuring Validity of Previously Filed Applications and Petitions for Nonimmigrant Employees Certain nonimmigrant status classifications are employer-specific, and any change to the employer may invalidate certain applications and petitions. This possibility should always be taken into consideration by the due diligence team. Below are the requirements for maintaining some common nonimmigrant applications and petitions: Labor Condition Application (LCA)* Prior to the continued employment of the nonimmigrant, the new employing entity must assume the predecessor entity's obligations and liability under the LCA. * A memorandum that includes the following should be placed in a public access file: * Agreement to comply with the LCA, and assume liability for all past violations; * Specific identification of the affected LCAs; * Description of the new entity's actual wage system; and * The Employer Identification Number (EIN) of the new entity. * The new employer must retain in its records a list with the names and job titles of all the employees transferred. I-129 Petition for Nonimmigrant Worker * The new corporate entity must intend to assume the interests and obligations of the original petitioning employer (refers to immigration-related liabilities only). * The terms and conditions of the employment remain the same, including: * Job Title/Position * Duties/Responsibilities * Location * Salary 2. Ensuring Validity of Immigrant Employee Applications and Petitions The process of applying for lawful permanent residency is arduous and can often take several years. Below is an overview of the potential effects that should be considered for employees involved in the application process: Application for Alien Employment Certification * The Application, and certification if it has already been obtained from the Department of Labor, will continue to be valid if the resulting employer entity is a "successor in interest" of the original employer. I-140 Petition for Immigrant Worker* If the I-140 petition is pending at the time of the business transaction, the new employer must be a "successor in interest," meaning it has taken on all of the immigration-related liabilities of the original employer. I-148 Petition for Adjusted Status * If the I-148 petition is pending at the time of the business transaction, the new employer must be a "successor in interest," meaning it has taken on all of the immigration-related liabilities of the original employer, or, * The application will also remain valid where: * The employee has filed an application for adjustment of status, * The application has been pending for 180 days, and * The new job is in the same or similar occupational classification as the job for which the labor certification was issued. 3. Analyzing the Terms and Conditions of the Transaction Where the employee's immigration status is employer-specific, it is important to note that certain changes to the employer company can disqualify the company from supporting certain visa classifications. The due diligence team should make the following inquiries: * If the transaction will result in any significant change of ownership: * Will a change in ownership affect the "nationality" of the employing entity? - If so, has the status of employees under the E-1/E-2 Visa classification been altered? * Will that change of ownership change the "qualifying relationship" between the U.S. company and the foreign company from which any employee was transferred? - If so, has the status of employees under the L-1 Visa classification been altered? C. Guidelines for IRCA Compliance Inquiries 1. The due diligence team should inquire as to any existing written IRCA compliance policies and procedures utilized by the target company. * Is there a program for training employees with hiring authority about the policies and procedures? * Are those policies and procedures followed by all employees with hiring authority? * Are the employment applications, forms, and other relevant documents in compliance with the policy and procedure? * Is there a specific person or centralized group of people charged with overseeing the compliance program? 2. The due diligence team also should investigate any prior incidents involving the U.S. Citizenship and Immigration Services (USCIS). * Has the target company been subject to any USCIS inquiries or Inspections? * What was the result of those encounters? * Have there ever been formal charges for violations or the imposition of any sanctions? 3. The due diligence team should also conduct an audit of I-9 forms that have been prepared by the target company.