All employers, from a start-up sole proprietorship to an established Fortune 500 company, can experience changes completely out of the control of the foreign worker which may affect that employee’s immigration status. Shifts in the economy and organizational changes may cause the employer to change their employment relationship with the foreign national. Whether the employer must shut down operations completely, lay off workers, or merge with another company, every foreign worker should know the effects these changes may have on their H-1B status or pending application for adjustment of status.
If an employer ceases its operations or terminates the employee, the H-1B worker is consequently no longer in a valid immigration status. In anticipation of termination or quitting, the foreign worker may transfer his H-1B status to a new employer by following certain rules. The H-1B worker may begin working for the qualifying new employer immediately upon the filing of a new petition by the new employer as long as the application for change of employment is non-frivolous and there has been no prior unauthorized employment on the part of the foreign worker.
Applying for a change of H-1B employer with the Immigration Service is also necessary for foreign workers where their employer is involved in a merger, acquisition or consolidation. However, a new H-1B application is not always necessary in these scenarios. If the new employer assumes all immigration related obligations and liabilities of the previous employer and maintains the required documentation in its public access file, a new application with the Immigration Service may not be necessary.
Employer/petitioners may also sponsor foreign workers for permanent residency (“Green Card”). The route to a Green Card is a multi-step process, and may take anywhere from 6 months to 6 years or longer to complete, depending on the employment classification and visa availability. If the employer terminates the job offer at any time before the approval of the Green Card, the application will most likely be denied. Similarly, if the employer goes out of business prior to the approval of the Green Card, the application will most likely be denied.
There is an exception to this rule. If an application for adjustment of status has been filed and remains pending for 180 days or more, the employee may “port” to a new employer. Porting will only be permitted if the new position is in a same or similar occupational classification as the original job for which the foreign worker was petitioned. Porting in this circumstance does not require the new position be located in the same geographic area nor is the new employer required to prove they have the ability to pay the prevailing wage.
Company reorganization may also have consequences for H-1B professionals who are being petitioned for a Green Card. If the petitioning employer is involved in a merger, acquisition, consolidation or other restructuring, a new employment-based petition will not be required if the new employer takes on the role of a “successor-in-interest” to the initial petitioning employer. A successor relationship is established where the new employer agrees to assume the rights, duties, obligations and assets of the original employer and continues to operate the same type of business.
There are numerous circumstances in employment-based immigration relationships which may affect the foreign worker’s status in the U.S. In addition to those mentioned above, an employer may decide to relocate or change their name. The employer may also decide to change the foreign worker’s job duties, hours, or salary. Any one of these changes may have a significant impact on the worker’s H-1B status or Green Card application.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.