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Proving Employer Successor in Interest after Filing I-140 Petition

Business Acquisitions During Pending Employment Based Immigrant Visa Petitions – The Successor in Interest Rule

What happens if my employer is acquired by another company while my employment based immigrant visa is still pending?

If your employer was acquired by another company while your visa was pending, your immigrant visa petition could be denied unless the new company is deemed a “successor in interest” to the old employer. The attorneys at The Law Firm of Shihab & Associates, Co., LPA have the experience necessary in such cases to give you the best chance of approval should this occur to your employer. Contact us for an evaluation of your circumstances.

In order to remain eligible for your employment based immigrant visa petition, the company that acquired the previous company must meet several criteria to qualify as a “Successor in interest.” There are three factors that must all be met. First, the job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification. Second, the successor bears the burden of proof to establish eligibility in all respects, including evidence of the predecessor’s ability to pay the proffered wage as of the date the labor certification was filed. Third, in order to show a valid successor in interest relationship between the successor and the predecessor that filed the labor certification, the petitioner must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.

The job opportunity offered by the successor must be the same as the job opportunity originally offered on the labor certification.

The job offered by the successor company must have the same or greater rate of pay, similar job description, and job requirements. Your petition will fail if you are asking the USCIS to accept changes on labor certification items relating to labor market test. Your Job must have been available since the labor certification was filed. Before the acquisition, the job opportunity ceases if the business operations ceased during the ownership transfer so that your services were no longer required. After the acquisition, job opportunity ceases if the business operations had a substantial lapse so that your services were no longer required.

The successor bears the burden of proof to establish eligibility in all respects

The successor company must prove eligibility in all respects, including evidence of the predecessor’s ability to pay the proffered wage as of the date the labor certification was filed. It must be established that the predecessor had the ability to pay the proffered wage from the labor certification filing date until the transfer of ownership occurred. It must be also be established that the successor had the ability to pay the proffered wage from the date the transfer of ownership occurred until such time as your immigrant visa is issued or you adjust status to permanent residence.

The petitioner must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.

To show a valid successor in interest relationship between the successor and the predecessor that filed the labor certification, the petitioner must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor. It must be established that that the successor company purchased both the assets and also purchased the rights and obligations necessary to carry on the business in the same manner as the predecessor.

Levels of difficulty in establishing a Successor in interest

For acquisitions made through stock purchase agreements, this should be a fairly straightforward process to meet the necessary criteria. In cases involving asset purchase acquisitions, the process becomes more involved as more evidence will be required. Merger acquisitions cases are very complex and require thorough examination and extensive documentary evidence in order to be approved.

Contact us for a consultation

If you have questions about an employer being acquired by another company during your pending visa application or any other immigration matter, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. The competent attorneys at The Law Firm of Shihab & Associates are experienced in obtaining waivers of inadmissibility, as well as other areas of immigration. We represent clients nationwide in various matters including green cards and permanent residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, investor visas, PERM applications, and many more. We will not tire until we get the desired results for you within the bounds of the law. Contact us for a consultation.

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