What happens to immigration benefits and status when an employer is involved in a merger, acquisition or other form of corporate restructuring? See this presentation

1. Corporate
Restructuring

2. What, Me Worry?
- words of a corporate lawyer

3. Why should you worry?

5. What is Corporate Restructuring?

7. What are the different types of
transactions?

8. Mergers

9. Acquisitions

10. Consolidations

11. Spin-Offs

12. Stock Transactions

13. Acquisition of Assets

14. Immigration Law Evolution
On Successorship of Interest

15. VS.

18. Liabilities under the predecessor entity’s
•
I-129 and I-140 petitions and under E visa
applications (as reflected in DS-156E
Parts I and II Applications);

19. Liabilities
•
related to the
predecessor’s
I-9 compliance
obligations,
and;

20. Liabilities related to actual or constructive
•
knowledge of the predecessor’s
immigration hiring practices, including any
Labor Condition Applications and related
documentation.

21. How does this relate to Arms-
Length Contractual Agreements?

22. Only Helps If You Get Advance Notice

23. Transaction Rehabilitation is Difficult After
Deal Has Closed

24. Doctrine of Contractual Reformation

25. Distinction:
Contractual Reformation is done to
more accurately reflect true intention

26. Sometimes Can Rely on
Concept of Mistake of Law or Mistake of Fact

28. How Do You Hear About It Early?

33. How Do You Get Corporate Counsel
to Want to Cooperate?

34. Learn About the
Proposed Structure of the Transaction

35. Identify Business Goals

36. Get Current Copy of Draft Deal Documents

37. Find Out Who Will Transfer and How Critical
is Their Participation

38. Find out Immigration Status and Acquire
their Immigration Documents

39. • Show
Corporate
Counsel
– Immigration Laws
Require Precise,
Pre-closing
Compliance Steps to
Allow the Business
Purpose of the Deal to
be Achieved

40. • Show Corporate Counsel
– Without Compliance, There Will Be
Liabilities Assumed by Corporate
Counsel

41. • Show Corporate Counsel
– Immigration-helpful Text Can be Inserted
without Frustrating an Important
Business Objective or Corporate-Law
Consideration

42. If Corporate Counsel Agrees to
Cooperate, What Should the
Immigration-Helpful Text Say?

43. In Order of Preference from an Immigration
•
Law Perspective
– Successor’s assumption of all assets and liabilities;
– Successor’s assumption of substantially all assets
and liabilities; or
– Successor’s assumption of all or substantially all
immigration assets and liabilities.

44. If possible include undertakings relating
•
to
– I-9 assumption;
– Evidence showing ability to pay wages in
immigrant visa petitions and labor certifications;
– Representations and warranties
regarding past immigration law
compliance, coupled with
holdback or indemnification
provisions for later-discovered
immigration violations;

45. If possible include undertakings
•
relating to
– Inchoate rights to predicate facts that will confer
immigration rights in the future;
– Cooperation agreement to help facilitate all future
immigration transactions relating to the transferred
employees, including, e.g., proof of ability to pay,
verification of prior employment, etc.

46. If possible include undertakings
•
relating to
– Any and all files that may be subject to audit in the
future, e.g., H-1B public access files and
documents supporting LCAs and, labor-
certification-related recruitment results, and
PERM-related compliance steps.

47. In the letter of intent;
•
• In the recitals
(Whereas clauses);
• In the operative
terms of the
agreement.
• In an exhibit to the
agreement.

48. Questions?