When a business changes itself drastically, immigration issues for employees is likely the last consideration many of us think about. However, there are many immigration issues that a corporate restructuring can conjure up. An experienced immigration attorney can help you determine how a corporate restructuring can affect you. Corporate restructuring refers to the reorganization of the legal, operational, ownership or other essential structure of a business.
With regard to any corporate restructuring issue, it is important to determine the following:
These questions are essential because they speak to the specific immigration issues that will need to be addressed. You may need to complete another round of I-9s, file new non-immigrant petitions, or file successor-in-interest immigration petitions for an acquired workforce.
To further demonstrate just how easily a corporate restructuring can affect immigration issues, we will discuss two commonly used visas for corporations, the H-1B visa and the L-1 visa as examples.
Because a business will commonly use the H-1B visa to hire foreign national workers for higher level jobs, they will have to file a new H-1B petition with the USCIS if they change entities. This may likely not be the case if the new entity/employer is a “successor in interest” in relation to the previous entity/employer. USCIS will only require another H-1B visa petition if there are “material changes” regarding the terms or conditions of that specific worker’s employment or eligibility, but not if the new corporate entity/employer succeeds the interests and obligations of the original entity/employer and everything else about the employee’s job remains the same.
Other issues that may arise for successors in interest regarding H-1B employees include concerns for employees that need to travel abroad or whether an acquisition or a merger caused the business to become dependent on H-1B employees by means of employing over a certain amount of H-1B employees based on the size of the employee pool.
It is important to remember that penalties for federal or state immigration rule violations can range from civil fines to asset forfeiture, imprisonment and even prevention of your ability to sponsor foreign workers. Civil and criminal liability for executives and various human resources professionals and managers is another risk.
Another common visa is the L-1 visa. One of the requirements of an L-1 visa is that in the past three years, the employee must have been employed for at least one year by the company (a foreign parent, subsidiary, affiliate, or branch is sufficient). In the event that the corporate restructuring results in a lack of qualifying corporate relationship between the entity/employer and a foreign entity, a L-1 employee could be subject to loss of their eligibility.
An experienced immigration attorney can help you navigate any immigration issues that occur as a result of a corporate restructuring. Contact Kriezelman Burton & Associates immediately for the best legal advice regarding how various corporate restructuring issues can affect the issues that immigrant employees and employers may face.
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The KB&A Team