Q: Do I need to apply for a
new H-1B visa if my company is acquired?
A: Current USCIS laws and policies
governing H-1B visa applications in the cases of change of ownership
or merger are not clear-cut, according to some immigration attorneys.
Some general guidelines, however, are provided below.
Even if one's company is acquired by another, generally one's employer
will NOT be required to apply for a new or amended petition so long
as two conditions apply:
(1) The original petitioner remains the H-1B holder's employer
(the USCIS usually looks to whether a new tax i.d. number has been
created to determine whether the employer remains the same)
(2) There is a "successorship of interest" between the
two companies. meaning that the purchasing company assumes all the
rights, duties, obligations and assets of the original company and
continues to run the same kind of business.
The above conditions also apply in the case of a merger. If an employer
merges with another company to form a new legal entity, a new or
amended petition must normally be filed since the first condition
has not been met.
Transfers of employees between subsidiaries or between the parent
company and a wholly-owned subsidiary are currently being decided
on a case-by-case basis. In one recent case, a parent company's
decision to move its employees to one of its subsidiaries required
it to file new H-1B visa petitions for those employees. In that
case, condition #1 above was not met.
New Company Name
If a company changes its name, employers normally
need not file a new or amended petition. They should merely advise
USCIS of the name change if they file an H-1B extension request.