Mergers and Acquisitions

Mergers and acquisitions have the potential to affect PERM labor certification applications. This should come as no surprise, since the composition, structure, and even business activities of a petitioning employer may substantially change after a merger or acquisition. Put simply, a statutory merger is a process that ends in one new consolidated company, while a statutory acquisition ends with the preservation of two joined companies, one of which has obtained majority stake in the other.

The most effective way to ensure a merger or acquisition does not negatively affect a pending PERM petition is to ensure that the resultant company acquired the interests of the preceding company that originally filed the labor certification application. In other words, the new company has to be the successor in interest of the company that filed the PERM petition, as required by the U.S. Department of Labor (DOL).

How to Establish a Successor in Interest Relationship

If the new or merged company took on all the assets (accounts receivable, intellectual property rights, contract rights, etc.) and all the liabilities (accounts payable, debts, contract obligations, etc.) in the merger or buyout, then the new or merged company is considered the successor in interest of the original company, and the company may therefore continue the PERM process for the alien employee. If a merger occurs before a PERM case is filed or approved, then the petitioning employer will still need to show that the new or merged company is a successor in interest of the original company in the event of an audit.

Documents frequently used to establish a successor in interest relationship include:

  • A contract of sale for the acquisition of the predecessor
  • A U.S. Securities and Exchange Commission (SEC) Form 10-K for the successor entity
  • Audited financial statements of both the predecessor and successor for the year in which the transfer occurred
  • Documentation of the transfer of real property and business licenses from the predecessor to the successor
  • Copies of the financial instruments used to execute the transfer of ownership
  • Newspaper articles or other media reports announcing the merger or acquisition of the predecessor

Whether a merger happens before, during, or after approval of a PERM petition, an employer must be prepared to satisfy the successor in interest requirements to U.S. Citizenship and Immigration Services (USCIS) when submitting an I-140 petition.

Previously, USCIS accepted approved labor certifications based on a successor in interest only if the merger or acquisition occurred after PERM approval. Fortunately, this is no longer the case, and a labor certification based on a successor in interest relationship created at any time during the PERM process will be accepted. As long as an employer can adequately document that the successor company truly acquired all of the previous company’s assets and liabilities, then USCIS will accept labor certifications for merged or acquired companies.

Different Names, Same Application

Advertisements for the job at the focus of a PERM application must reference the employer during recruitment, and ETA Form 9089 must similarly reflect the employer at the time of filing.

If a merger or acquisition takes place before a PERM application is filed, discrepancies between the employer’s name on advertisements and the employer’s name on the PERM form may arise.

If a merger or acquisition takes place after a PERM petition is submitted, thereby allowing the employer’s name on advertisements and ETA Form 9089 to match, then the new employer should still be prepared to document that it is the successor in interest in the event of an audit.

Case Studies

To illustrate the potential effects of mergers and acquisitions on PERM applications, consider the hypothetical case studies below.

An Acquisition

Background

LiteZon, a regional renewable energy company, has begun recruitment for a PERM position. In each advertisement associated with the job being offered, the employer is listed as LiteZon. After the recruitment period ends, but before the ETA Form 9089 is filed, Kurbam, Inc., an international energy sector conglomerate, obtains majority stake in LiteZon through a statutory acquisition of the company. At the time of filing ETA Form 9089, Kurbam, Inc. is listed as the employer, since after the acquisition, Kurbam, Inc. took on all of LiteZon’s assets and liabilities, including those related to pending immigration matters.

What are the effects of the acquisition on the PERM petition?

Even though the acquisition may trigger an audit, in order to proceed with the pending labor certification application, all that Kurbam, Inc. needs to do is prove that it is the successor in interest of LiteZon. (Fortunately, Kurbam, Inc. retained an expert PERM legal team, and its attorneys ensured it could demonstrate being LiteZon’s successor in interest.)

A Merger

Background

Quasi-Queens, a cosmetic company in Florida, filed a PERM labor certification application for Kimberly Chi, a foreign makeup artist. Shortly thereafter, Quasi-Queen’s PERM petition is certified. Before it was able to file an I-140 petition for Ms. Chi, however, Quasi-Queens concluded a pending deal that merged it with Ru P.’s Aesthetics, another cosmetic company, resulting in a new entity, Colossal Cosmetology. In their merger agreement, Ru P.’s Aesthetics assumed all assets and liabilities of Quasi-Queens, including its immigration liabilities, and Quasi-Queens dissolved after the merger.

What are the effects of the merger on the PERM petition?

In this context if the new entity, Colossal Cosmetology, is willing to continue sponsoring Ms. Chi during the green card process, then it is permitted to file the I-140 petition for Ms. Chi using the approved PERM under Quasi-Queen’s name.

Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at info@hooyou.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.

For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links:

Updated 04/14/2017