Will My Visa Be Automatically Updated If I am Relocated?
No! All foreign nationals must file an AR-11 “address report” form with USCIS anytime the person’s home address changes. A change in the employee’s worksite may also affect the validity of the person’s immigration status. All visas have their own special requirements, and some are more flexible than others with regard to changes in the worksite location. E and L visas are especially sensitive to changes in corporate ownership and structure, but less so with regard to changes in the worksite location. H-1B and E-3 visas are supported by a location specific LCA “labor condition application” which confirms that the employee is being paid at least the prevailing wage for the assigned worksite. This means that worksite changes for those categories often require a new LCA filing and often the submission of an updated petition filing to USCIS.
Can I Remain In The US When My Visa Is Being Updated Within The Same Company or Its Successor?
Whether an individual can remain in the US while their visa is being updated within the same company depends, and must be reviewed on a case-by-case basis. Some visas have a certain grace period that USCIS is normally more amenable to recognizing as long as we check in with them quickly. There is also an additional regulatory provision that grants them the authority to exercise discretion to waive a person back into status to cover any gaps in status that may be deemed to have occurred. Usually that will apply only when there has not been any employment without authorization. The main point is that it really depends on a case-by-case basis. Often, the worst-case scenario is that as long as the person is eligible for some other kind of visa, he or she would simply depart the U.S., apply for the new visa in the correct category, and then return to the U.S. with the correct visa to update their status.
What Are the Easiest Employment Visas to Work with in a Merger or Reorganization Scenario?
If the only change is that there is a new owner, or some change in the ownership structure, probably the H-1B visa is the easiest because no change or new paperwork is required, and a specific law has been passed to address that point. As noted above, E and L-visas tend to be more problematic. The other thing is that no matter what the change is, if the employee has an H-1B visa, that visa is portable. It can be transferred to any other employer here in the US, as long as it is for same or similar employment, and the employee still qualifies for an H-1B specialty occupation. With E and L, those changes tend to be a little bit more difficult because the new owner may not have the same nationality, or may not have qualifying corporate structure that would support the L visa.
What Should An Employee Do When The Company Is Going Through A Merger Or Acquisition?
The most important thing would be for the employee to communicate directly with the company’s human resources team, and also the company’s immigration attorney, to see how the proposed change might affect a person’s status. It is also recommended to obtain a written confirmation of how the proposed change will or will not affect the sponsored employee.
Although most of the time the HR team and the company’s current immigration attorney can adequately address these matters, an employee may have his or her own independent immigration counsel if the employee’s employment with the present employer will end as a result of the restructuring, or if other important personal considerations apply.
Nonetheless, it is also important for the foreign worker to keep in mind that normally for most of these matters, the company is the client of its own immigration attorney and will often need to manage these matters to preserve the status of a large group of employees and may need to take certain specific steps in a set order, regardless of what an employee’s personal immigration attorney may consider to be the right step. This means that the company is usually going to follow the advice of their counsel, and is not going to be open to taking second or third opinions from other attorneys for whom the Company is not the client. That is just the reality of the steps that the company needs to take to protect its shareholders and to best manage the company’s interests and to have an organized process in going forward. Often there is a lot going on with these restructuring changes. The company’s HR team is normally very busy and will not going to have time to talk to several different attorneys. Instead, the HR team will want to go to one attorney, send that attorney a list of all the foreign worker employees, and then obtain an updated chart noting what, if any, actions need to be taken. In that way, the HR team can best support all of the sponsored case.
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