Steps  to take during a Merger/Acquisition/Spin-off when a company employs non-U.S. Citizens

Step One – Gather Information:

• Name
• Type of visa
• Date visa status acquired
• Date visa status expires
• Whether the status may be renewed – if so, for how long
• Whether an application for permanent residency is pending
• Whether the employee expects that the employer will “sponsor” him or her for permanent residency
• Current job site
• Current salary
• Current job duties
• Any proposed changes in job location, salary, or duties

Step Two – Determine Which Employees Will be Retained:

• If the non-U.S. citizen is not being retained, U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) may need to be notified, depending upon the employee’s immigration status.  The employee’s original employer may need to offer to pay the employee’s costs of return transportation.
• If any layoffs are occurring in the same occupation as the employee being sponsored, the layoffs may affect a pending or future application for labor certification, by requiring additional steps be taken or the layoffs may prevent the pending or future application from being approvable.
• Determine whether any applications need to be filed with USCIS or DOL to amend the immigration status of non-U.S. citizen employees who are being retained.  Whether and which applications are needed will depend upon the particular immigration status and the type of corporate change.
• Docket the visa expiration dates and any applicable filing deadlines of all employees on non-immigrant visas who are being retained.

Step Three – Gather Documents:

• Copies of previous visa petitions
• Copies of employees’ immigration documentation to confirm there have not been any status violations
• Copies of Public Access Files (for employees in H-1B status)
• Copies of I-9 Forms

Step Four – Consider Targeted Company’s I-9 Forms:

• Determine whether the company operates in an industry which is often the subject of I-9 or other workplace investigations, such as construction, food processing, restaurant, or agricultural production
• Find out whether target company has policies and procedures in place for I-9 completion, maintenance, and review
  • If so, you may be comfortable with requesting a sample of I-9 forms and performing an audit on those forms
  • If audit results are satisfactory, do nothing more
  • If audit results not satisfactory, review all I-9 forms to determine exposure to risk
  • Consider:
    • The state of the target company’s I-9 compliance and related records
    • The advisability of accepting inherent liabilities associated with a stock or merger transaction
    • The advisability of accepting the target company’s I-9 records as a “continuing employer”
    • Options to minimize and mitigate risks flowing from the form of transaction or assuming the target’s I-9 records
• If no policies and procedures are in place, review all of the target company’s I-9 forms
  • Consider same issues as above
  • May choose to accept potential liability, or re-do all I-9 forms immediately after the purchase closes
• If the company operates in an industry which is highly susceptible to government investigations, re-do all I-9 forms after purchase closes so that the successor company is not accepting liability for prior deficiencies

Step Five – File Necessary Petitions for Non-U.S. Citizens