H-1B Visa - Changes in Corporate Structure

Q: Do I need to apply for a new H-1B visa if my company is acquired?

A: Current INS 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.

Acquisitions
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 INS 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.

Mergers
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.

Intra-company Transfers
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 INS of the name change if they file an H-1B extension request.