USCIS Policy Manual – Chapter 3 – Successor-in-Interest in Permanent Labor Certification Cases
If a company has been acquired, merged or had a significant change in its ownership, the new or reorganized entity is generally considered a successor-in-interest (“Successor”) to the originally existing company.
In the immigration law context, the Successor is required to submit documentation evidencing that it has assumed the rights, duties, obligations and assets of the original employer and that it will be liable for the employment of the beneficiary subject to the terms set forth in the labor certification and I-140 Petition.
Similarly, a company that changed its name or corporate structure would need to meet these requirements.
Traditionally, these requirements by the Successor could have been met in cases where the labor certification (LC) has been approved and the I-140 had not yet been filed, by having the Successor company file the I-140 (immigrant visa petition by employer) with the evidence described above, to reaffirm that the Successor is continuing to offer the employment to the beneficiary in accordance with the information stated on the LC.
Eligibility Requirements
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 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.