INS Addresses Successorship for H-1B Purposes
HQ70/6.2.8
Leslie T. DiTrani, Esq.
RICHARD L. IANDOLI & ASSOICATES
36 Melrose Street
Boston, Massachusetts 02116
Dear Ms. DiTrani:
This refers to your letter of December 23 in which you pose a number of questions concerning the H-1B nonimmigrant classification.
In your letter a company that you represent has merged with another company. All the aliens employed by the merged company work in the same positions and in the same locations. You state that the resulting company is a successor-in-interest. You ask whether amended petitions must be filed under these circumstances.
Based on the information that you have provided in your letter, it appears that the scenario you have described fits the Service's definition of successor-in-interest. Briefly one company assumes all the rights and obligations of another company, the assuming company is the successor-in-interest. The current service policy is that if the new employer is a successor-in-interest, it is not required to file amended petitions. However, if, pursuant to the regulations of the Department of Labor, new Labor condition applications are required as a result of the merger, then amended petitions must be filed.
You also question whether the new $500 filing fee required by ACWIA must accompany the amended petitions.
The Service's current policy is that the $500 filing fee is not required with an amended petition unless the amended petition involves an extension of the alien beneficiary's stay.
Finally, you question whether there is a time frame with in which the amended petitions must be filed.
The regulations discussing the filing of amended H petitions do not specify a specific time when an amended petition must be filed. It is suggested that employers file the amended petitions as soon as possible after the occurrence of the event necessitating the filing of the amended petitions. An amended petition may be filed with the Service after one of the companies involved in the merger dissolves.
I trust this response satisfactorily addresses your concerns.
Sincerely,
Efren Hernanadez
Acting Director
Business and Trade Services
December 23, 1999
Tom Simmons
Branch Chief, Business and Trade Services
425 Eye Street, NW
Washington, DC 20536
Dear Mr. Simons:
I am writing to inquiry about policy surrounding H-1B petitions and mergers..
It is my understanding, pursuant to your branch's correspondence to Attorney Freibeig dated March 19, 1997 (please see enclosed), that an amended H-1B petition is required when a new LCA has been filed as a result of a change in federal tax identification number. Is this still the policy?
Our client merged with another company. The resulting company is a successor-in-interest to the previous company. There is a new federal tax identification number. All foreign nationals are remaining in the same positions, in the same locations. Under these circumstances are amended H-1B petitions required? Is the petitioner required to pay the $500 H-1B supplemental fee? If merely an amended H-1B petition is filed to reflect the new federal tax identification number, with no extension of time requested, is the $500 H-1B supplemental fee required? Will INS accept amended petitions for filing even if they are filed after the previous company has been dissolved? Is there a time frame in which amended petitions, pursuant to a change in federal tax identification number, must be filed?
Your answers to these questions are greatly appreciated. Thank you for your attention to this matter.
Sincerely,
Leslie T. DiTrani. Esq.
enclosure