Immigration Consequences of Mergers and Acquisitions
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Immigration Consequences of Mergers and Acquisitions

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Presentation by Greg Siskind to American Bar Association - 28 AUG 2007

Presentation by Greg Siskind to American Bar Association - 28 AUG 2007

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Immigration Consequences of Mergers and Acquisitions Immigration Consequences of Mergers and Acquisitions Presentation Transcript

  • Immigration Law and Corporate Transactions American Bar Association – 28 August 2007 Greg Siskind – Siskind Susser Bland, P.C. [email_address]
  • General Considerations
    • US and states have dramatically stepped up enforcement – criminal and civil penalties
      • I-9 investigations
      • States – loss of access to government contracts; loss of business license
    • litigation exposure if you render workers out of status
    • Serious PR problems
    • The Wal-mart contract
  • The Disconnect
    • Most large firms lack immigration departments and even when they do, the corporate department doesn’t talk to them
    • Even if they have an immigration department, chances are the immigration lawyers lack a corporate background to even understand why they’re counsel is needed
    • Vast majority of transactions have no immigration due diligence or boilerplate language to protect client.
  • Basic Discussion
    • Non-Immigrant Visas (F-1 trainees, H-1B, L, E, TN)
    • Immigrant visas
    • I-9s
    • Generally speaking, the question will be whether there is a successor in interest situation; if yes, re-filing of visas may be less, but important to check for compliance of prior company
  • Important Issues
    • How is the deal structured?
      • A merger or spin-off where employees will have a new employer with a different TIN
      • A stock purchase where the acquired company remains a separate corporation with its existing TIN
      • An asset acquisition where no liabilities are being assumed
    • What are the timing consideration?
      • Is there time to file new petitions?
      • Are employees going to suffer adverse immigration consequences as a result of timing?
      • Can you defer immigration paperwork until after closing?
    • Convenience of not having to refile versus risk of assuming liabilities associated with prior filings
    • Employee leasing?
  • Non-Immigrant Visas – H-1Bs
    • H-1Bs – used to be that new EIN meant new LCA which meant new H-1B petition; now it is enough to assume immigration liabilities and annotate public access file; but you may not want to assume liabilities and would want to transfer prior to closing
    • Material changes in employee’s duties and job requirements and the relocation of the employee may also require a new LCA. So a consolidation of operations resulting in relocations could trigger a later need to make changes.
    • Fees for H-1Bs can be hefty so not having to refile can be a big saver
    • Layoffs may be barred if employer is dependent; need to recalculate to see if company is dependent based on number of H-1B employees in new entity versus total number of employees
    • Continuing to document ability to pay
  • TN Visas
    • No LCAs so basic successor in interest analysis applies.
    • Nationality of employee key, not company
  • L Visas
    • Does qualifying relationship still exist? If you go through same corporate analysis, are there two qualifying entities?
    • Original foreign entity need not be surviving for L-1 to continue qualifying
    • Might still need to amend if there are major changes
    • Will want to add new entities to blanket L; then employees can transfer without amending petitions
  • E visas
    • Has nationality changed?
    • Is there a treaty?
    • May need to transfer to H-1B or L?
    • E-3s
  • NIV remedies
    • File transfers prior to closing
    • File amendments after
    • Transfer to other visa categories
    • Start green card processing
    • Spin off employee leasing company to retain employees until they can be transferred.
  • Green cards - PERM
    • Visa Bulletin mess – long waits
    • Three steps to green card – PERM (recruiting, I-140, adjustment)
    • PERM – liberal notion of successor in interest
    • USCIS tougher on I-140s; new employer triggers need for new I-140
    • Adjustment - portability
  • Green cards – Multinational Transfers
    • Same analysis as the L-1
    • May want to lease employees
    • Check for adjustment portability
  • I-9s
    • If successor in interest, I-9s remain valid
    • If not, all I-9s must be re-completed at date of closing
  • Name Changes
    • No need to re-petition
    • Either file amendments or note when case is extended
  • Due Diligence
    • Should be part of every transaction
    • Should have an inventory of all workers on visas to see whether company has history of compliance, what visas need to transfer prior to closing and which shortly after closing
    • Boilerplate