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Changes in Corporate Structure |
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Q: Do I need to apply for a new H-1B visa if my company is acquired?
A: Current INS laws and policies governing H-1B visa applications in the cases of change of ownership or merger are not clear-cut, according to some immigration attorneys. Some general guidelines, however, are provided below.
Acquisitions
Even if one's company is acquired by another, generally one's employer
will NOT be required to apply for a new or amended petition so long as
two conditions apply:
(1) The original petitioner remains the H-1B holder's employer (the INS usually looks to whether a new tax i.d. number has been created to determine whether the employer remains the same)
(2) There is a "successorship of interest" between the two companies. meaning that the purchasing company assumes all the rights, duties, obligations and assets of the original company and continues to run the same kind of business.
Mergers
The above conditions also apply in the case of a merger. If an employer
merges with another company to form a new legal entity, a new or amended
petition must normally be filed since the first condition has not been
met.
Intra-company
Transfers
Transfers of employees between subsidiaries or between the parent company
and a wholly-owned subsidiary are currently being decided on a case-by-case
basis. In one recent case, a parent company's decision to move its employees
to one of its subsidiaries required it to file new H-1B visa petitions
for those employees. In that case, condition #1 above
was not met.
New
Company Name
If
a company changes its name, employers normally need not file a new or
amended petition. They should merely advise INS of the name change if
they file an H-1B extension request.
