§ 2.3 Business Clients with Foreign Employees

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 2.3 BUSINESS CLIENTS WITH FOREIGN EMPLOYEES

If the client is a business that seeks to employ or does employ foreign workers who are not LPRs (see § 2.2), then a number of rules apply to those employees that do not apply to U.S. citizens or LPR employees. Although this chapter will not address all of these possible issues—given that each case invariably has a unique set of facts—two critical areas that will impact the business transactional practice and that occur on a regular basis are discussed in § 2.3-1 to § 2.3-2.

§ 2.3-1 Treatment of Foreign Employees during a Merger, Acquisition, or Other Corporate Restructuring

When a merger or acquisition occurs, the most common question is how the transaction will impact the immigration status of foreign employees, either nonimmigrant temporary workers or employees who have not yet completed the process of obtaining permanent residence. For the nonimmigrant who does not have an application for permanent residence pending and whose employment is not dependent on who owns the employing entity, the answer is straightforward: as part of the merger or acquisition, the surviving or acquiring entity should accept in writing all immigration obligations of the predecessor entity. Often this is done as an addendum to the purchase agreement, but it must be done in writing. If the employee is an H-1B status holder (see § 2.2) for whom a public access file (PAF) must be maintained for review by any interested party (see 20 CFR § 655.760), a responsible official of the new employing entity must place a sworn statement in the PAF stating that the entity accepts all obligations, liabilities, and undertakings under the labor condition applications (LCAs) filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and the Federal Employer Identification Number of the new employing entity. See 20 CFR § 655.730(e)(1). See generally 8 USC § 1182(n); 20 CFR pt 655 subpt H. If any of the terms and conditions of employment are changing, then the attorney should consult with immigration counsel to determine whether an amended petition must be filed and when.

If the worker is one whose visa depends on who owns the employing entity, then additional issues will arise. For example:

• Persons in E status (see § 2.2) remain eligible for their visas only as long as at least 50 percent of the ownership of the employing entity is held by citizens of the treaty country as noted in § 2.2. See 8 USC § 1101(a)(15)(E); 8 CFR § 214.2(e). Therefore, any corporate restructuring that would reduce the treaty country's stock ownership below 50 percent would eliminate the ability to retain the employee unless the employee is eligible to be sponsored for a different visa category.

• Persons in L-1 status (see § 2.2) remain eligible for their visa status only as long as a qualifying parent, branch, affiliate, or subsidiary relationship continues to exist with the company for which the L-1 employee worked abroad. See 8 USC § 1101(a)(15)(L); 8 CFR § 214.2(l). Therefore, any corporate restructuring that would eliminate or change that relationship will, with certain very narrow exceptions as noted below, likely result in losing the ability to

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