|
|
|
|
SUBSCRIBE The leading Copyright |
Successor In Interest: M&A And Extended Horizon For Multinational Executives/Managersby Pravinchandra Patel
One specific issue of great significance that frequently arises in the context of mergers & acquisitions (M&A), and impacts multinational executives or managers in either an EB-1-3 immigrant visa classification or a nonimmigrant L-1A classification. I have confronted it in a number of cases in the last two years, and I may add, with unqualified success. This brief article is an attempt to share my experiences with the immigration bar. The Immigration and Naturalization Service's (INS) policy is that a new employing entity that is a successor in interest must file a new I-140 petition . . . . to establish that it has assumed the rights, duties, obligations and assets of the original employer . . . . [Internal citation omitted] Without such documentation the INS is unable to reaffirm the validity of the initial Form I-140 petition and the labor certification. The INS has taken the position that a company is a successor in interest when it has taken on all of the immigration-related liabilities of the company it has acquired, merged, etc. [Emphasis added] [7]Indeed, the same office had provided a similar guidance in a nonimmigrant context a few months earlier on June 7, 2001: . . . . The INS has consistently interpreted this requirement to mean that where a second company assumes substantially all of the assets and liabilities of the first company, . . . . . INS has also stated both at conferences and in correspondence that the assumption of liabilities refers to immigration-related liabilities, such as LCA obligations and violations thereof. It does not refer to non-immigration-related obligations and liabilities, such as environmental or tort obligations, for example. . . . . [Emphasis added] ."Given this history and the fact that the INS (now BCIS) had been amenable to a more favorable and liberal interpretation of the concept of "successor in interest," I believed that it was possible and time for someone to have it extended just a little bit further while the iron was hot, so to speak, to cover the issue under discussion. After all, when a company purchases or merges with another company with a condition that the purchased or merged company's top level employee or employees must continue to work for the new company, obviously it is because of the need for a smooth transition. Also, if the new company assumes all the immigration-related liabilities and obligations, why should it not be allowed to assume all immigration-related rights and interests and thus assume whatever it takes to keep essential and key personnel in the United States, as long as all other legal requirements are satisfied. It is certainly reasonable and sensible to permit key and essential L-1A employees, brought at considerable efforts and expense, and who are already functioning as essential part of the corporate establishment in the United States, to continue in the same status that they have rightfully enjoyed from the beginning. In a legal memorandum in each case, I advanced these and other arguments to claim continuing L-1A eligibility of all such employees. Indeed, in my later cases, I also made a reference to the fact that other Service Centers (or the same Center in other identical cases) have approved a similar claim. Of course I did it just in a passing manner. I did not make, and I frankly stated that I was not making, an argument that my case should be approved simply because other identical cases had been recently approved by the same Service Center and other Service Centers. Obviously, that cannot be the sole reason for approval even in the same Service Center. Nonetheless, I submitted that it was a factor that could not be entirely neglected. Rather, it should be taken into account along with all other significant and substantial reasons. After all, uniformity is an avowed goal in the administration of immigration law. Indeed, uniformity and consistency in the administration of the immigration law may inspire confidence and increase agency credibility. As one can readily see, the basic argument is no more than a slight extension of the interpretive process regarding the doctrine of "successor in interest" as applied to immigration cases, for it allows a new company to simply assume all the rights and interests held by the merged or the acquired company including the right/interest emanating from or inherent in the alien's prior employment abroad. If the law as explained in the cited Service correspondence allows the new company to step into the shoes of the merged/acquired company and continue the immigrant and/or nonimmigrant visa process for any alien employee, there is no rhyme or reason not to allow it to continue employment of L-1A employees. Indeed, there is nothing in the law squarely prohibiting such limited extension of the concept of "successor in interest." [1] I have used these two country names only for convenience and also to avoid any possible confusion. However, basically it does not make any difference whether it is Japan or Sweden or any other country or countries. The underlying concept and principle remains the same. Indeed, the writer has used the concept described in this article for companies of other countries as well. [2] INA § 101(a)(15)(L) was amended by Public Law 107-125, 115 Stat. 2403, effective January 16, 2002, pursuant to a corresponding amendment to § 214(c)(2)(A), to reduce the required overseas employment of L-1 aliens from 1 year to 6 months, applicable only if the employer has filed a blanket petition. [3] I am proceeding on the assumption that readers are generally aware of all the L-1A statutory and regulatory requirements, one of which is that there must be a corporate affiliation between the U.S. company and the company overseas. [4] Again, it is a threshold requirement for L-1A classification that the person must have been employed abroad in a capacity that is executive or managerial in nature, and must continue to perform similar functions in the United States. [5] I have so far handled about a dozen cases in three Service Centers (Vermont, Nebraska and California) with the identical issue and favorable result in all. [6] I say it is a "refined version" only euphemistically, for, quite frankly, it was an about face or a virtual reversal of its earlier stand on the part of the Service. [7] [See the INS correspondence referenced as: "HQ 70/6.1.3," dated October 17, 2001, reproduced Appendix IV in 78 Interpreter Releases 1694-95, dated October 29, 2001.]
About The Author |
Add to del.icio.us