Preserving Labor Certification During a Company Acquisition

The purchase or acquisition of companies has become commonplace in in modern business practices. In such instances, the successor company must take certain measures to protect the immigration status of the predecessor company’s foreign national employees.  Once a foreign national employee has an approved labor certification and I-140 immigrant petition, typically the employee may adjust status inside the United States so long as the job opportunity remains available.  In the event of a successor company, this change in circumstances can affect the job opportunity such that a new labor certification may be required. Filing a new labor certification can cost a company thousands of dollars in legal fees and advertising costs, not to mention several months of time. However, if the appropriate steps are taken, filing a new labor certification may not be necessary.

Successor-in-interest companies may not need to file new labor certification for employees with approved labor certifications; however, a valid successor-in-interest relationship must exist.  This can be established through fully describing and documenting the transfer and assumption of the ownership of the predecessor company by the successor company.

A new labor certification may not required so long as the following criteria are met:

  1. The job opportunity with the successor-in-interest company must be the same as the job opportunity original offered on the original labor certification. This requirement includes the job duties, job requirements, and wages (although there can be a wage increase due to the passage of time).
  2. The successor-in-interest company and the predecessor company must both be able to demonstrate the ability to pay the proffered wage from the priority date onward.
  3. The successor-in-interest company must demonstrate that it acquired the predecessor company’s essential rights and obligations necessary to carry on the business in the same manner. The successor-in-interest company must continue to operate the same type of business as the predecessor company.
  4. The original labor certification must be valid in the successor-in-interest company’s geographic area (MSA).

It is imperative that the purchase contract fully describe and document the transfer and assumption of ownership. A carefully crafted and well thought-out contract can save a company thousands of dollars in legal fees and filing fees, as well as significant amounts of time and headache.