What Are Potential Immigration Consequences Resulting From Corporate Mergers, Acquisitions or Reorganizations?
The immigration consequences resulting from corporate structural changes depend on the type of visa held by the sponsored employee. For example, E-1 and E-2 visas are nationality specific. If the nationality of the qualifying owners changes to fall below 50%, the company may no longer be able to support E-visa status. The L-1 visa is based on the continuance of a qualifying corporate relationship, so sometimes these kinds of corporate restructuring and structural changes can affect the validity of the L visa. Structural changes regarding L-1 and E-visas must be reviewed on a case-by-case basis as changing just one aspect of the transaction may change what is or is not an option. Provided the new employer is a successor to the predecessor and the work location remains in the same physical area, H-1B visas are often not affected by company structural changes, as outlined in the law found at Immigration and Nationality Act § 214(c)(10).
Are There Benefits to Being Proactive?
Implementing corporate structural changes is a complicated task, with the attention of the Company’s senior leadership divided among many important priorities. Unfortunately, the evaluation of the immigration consequences of the change is often addressed at the later stages of the restructuring process, sometimes after the restructuring transaction has already been completed. Proactive planning can greatly reduce employee concerns about the process and may provide time to find or preserve options for key employees.
How Long Does The Government Give a Visa Holder To Change Or Update Status to Facilitate Remaining in the US?
There is a penalty concept called Unlawful Presence, which applies if a person overstays the most recent I-94 document. That is separate from status. Status is a highly technical concept. It is possible that the person may have a status based technical issue, but not be unlawfully present. Although a person who has a technical status problem could be removed from the U.S. (a.k.a. “deported”), that may be an unlikely scenario if the person still has a facially valid document. However, a person who is not maintaining status may later be unable to return to the U.S. from travel abroad, and may be unable to obtain a new visa stamp at a U.S. consulate abroad – possibly even if applying under a new and unrelated category. It may be helpful to think of status maintenance as a kind of credit score. Maintaining good immigration “credit” may preserve future visa options, but having bad immigration “credit” may make it difficult, or maybe even impossible to obtain a future visa.
Can My Immigration Status Be Affected Before My Company Makes Any Major Change?
Absent a layoff or change in worksite location, an immigration status is normally not affected until after the company restructuring takes place.
Is It Possible To Transfer My Visa To Another Company In The United States?
H1-B, E-3, TN, and O-1 visas can often easily be transferred to a new employer. E-visas and L-visas are subject to ownership and structural requirements, which may be undermined through the corporate restructuring process. It is critical for companies employing foreign nationals to consult with an immigration attorney before making any corporate structural change.
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