Corporate restructuring, acquisitions, and mergers can be hectic times, with many events happening all at the same time. It’s important to keep immigration considerations on the radar and part of the due diligence process. Otherwise, you could lose some of your most valuable assets – your employees. Here are some top items to consider from an immigration perspective during corporate changes.
- I-9 Compliance – Buyers should ask sellers about their immigration compliance efforts and their I-9 records. They should also ask if the seller is an e-verify employer. Consider conducting an internal I-9 audit to substantiate compliance, and consider adding immigration and I-9 compliance as a representation and warranty in the transaction documents.
- Roster of Foreign Nationals – Make a list of all foreign national employees, their immigration status and expiration dates, and where they are in the greencard process. This will help determine who will be affected by the corporate changes. Conduct this analysis before terminating and re-hiring employees (as is often done as part of a corporate change), so as to not jeopardize their status.
- H-1B Amendments – See if there will be any changes to any H-1B worker’s employer identity, duties, pay, or job location. If so, determine whether any H-1B amendment petitions must be filed.
- Anyone in the Greencard Process? – Determine who has started the greencard process. For each person, determine where they are in the process and how the corporate changes will affect his/her greencard process. Will you have to start all over? If so, will the employee’s immigration status allow time for that? Is there particular language you should add to the transaction documents, or other steps you can take, to help save you from starting all over?
- Any E-2’s or L-1’s? – Determine if anyone is in E-2 or L-1 status. If so, see if the corporate changes will render them ineligible for their status. Will the underlying relationship with the foreign employer be altered, invalidating the L-1 status? Will the ownership and nationality of the E-2 company be altered, invalidating the E-2 status? If so, are there alternate ways to continue the affected employees’ work authorization?
In sum, consider the status of foreign national employees early and thoroughly during corporate changes. Consult immigration counsel to determine whose status will be impacted and what is necessary to maintain work authorization, the greencard process, and immigration compliance.
For more information, please contact Berin S. Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2016 Posternak Blankstein & Lund LLP. All rights reserved.
Up Next...
