Company acquisitions often bring about many changes, impacting employees undergoing the PERM (Program Electronic Review Management) process. This blog explores how these acquisitions affect key aspects of the PERM process, including prevailing wage determinations (PWD) and Form 9089, which is used to request permanent labor certification from the Department of Labor (DOL).

Understanding the PERM Recruitment Process

The PERM process is a critical step for employers wishing to hire foreign workers permanently. It involves several steps:

  • Job Advertisement and Recruitment: Employers must conduct a thorough recruitment process to prove there are no qualified U.S. workers for the position.
  • Prevailing Wage Determination (PWD): Employers must obtain a PWD from the DOL to ensure the wage offered meets industry standards.
  • Filing Form 9089: This form is submitted to the DOL to request labor certification.

Impact on Prevailing Wage Determinations (PWD)

When a company is acquired, any existing PWDs may need to be reviewed. Key considerations include:

  • Wage Re-evaluation: The acquiring company must ensure the wage offered still meets the prevailing wage criteria.
  • Job Role and Location Changes: If the job role or location changes due to the acquisition, a new PWD may be required.

Changes to Form 9089

Form 9089 is a crucial document in the PERM process. An acquisition can lead to changes that must be addressed, such as:

  • Employer Information: Update the employer’s name, address, and Federal Employer Identification Number (FEIN) if they change due to the acquisition.
  • Job Duties and Requirements: Any changes in job duties or requirements must be accurately reflected in a new or amended Form 9089.

Successor Requests to Use a Predecessor’s Approved Permanent Labor Certification

When a company is bought, merged, changes corporate structure, or significantly changes owners, the new or reorganized company may demonstrate to USCIS that it can be considered a successor in interest (successor) of the original company to assume the predecessor’s prior immigrant benefits requests.

If a successor company acquires all or some of a business from a predecessor company, it may file a petition requesting to use the approved permanent labor certifications that the predecessor filed with the U.S. Department of Labor (DOL). Such a successor may also file a new or amended petition if the predecessor has already filed one.

The employer must file such petitions within the validity period of the permanent labor certification and must submit the following evidence:

  • Qualifying Transfer Documentation: Establish the transfer of ownership of the predecessor to the successor.
  • Authorized Official Documentation: Evidence from an official of the successor showing the transfer details, organizational structures before and after the transfer, and job specifics for the permanent job opportunity.
  • Beneficiary Qualification Documentation: Demonstrate the beneficiary’s qualifications per the permanent labor certification.
  • Original Approved Permanent Labor Certification: Provide the original document.
  • Ability to Pay Documentation: Show the ability to pay the proffered wage by both the predecessor and the successor.

Situations Not Requiring a New or Amended Petition

Not every change requires a new or amended petition. Specifically:

  • Legal Name Change: No new petition is required if the ownership and legal business structure remain the same.
  • Job Location Change: No new petition is required if the new location is within the same metropolitan statistical area as stated on the permanent labor certification.

When filing an Application to Register Permanent Residence or Adjust Status (Form I-485) or applying for an immigrant visa, the beneficiary may need to document that the petitioner is the same or that the job opportunity remains in the specified area.

Change in Employer Due to Transfer of Ownership to a Successor

Successor-in-interest entities must file an amended petition to rely on the predecessor’s petition and permanent labor certification, demonstrating a qualifying relationship. Required evidence includes:

  • Previously Filed Petition Documentation: Receipt number and details of the previously filed petition.
  • Ability to Pay Documentation: This is for both predecessor and successor.
  • Qualifying Transfer Documentation: Establish the transfer of ownership.
  • Authorized Official Documentation: Show details of the transfer and job specifics.

Consolidated Processing of Multiple Successor-In-Interest Petitions

USCIS may consolidate evidence and coordinate adjudicating multiple successor petitions based on the same transfer. Petitioners can request consolidated processing through the USCIS Contact Center or the appropriate Premium Processing mailbox.

Successor-In-Interest Determinations

Based on Dial Auto Repair Shop, Inc., a valid successor relationship requires the successor to assume the essential rights and obligations of the predecessor and continue the business in the same manner.

Factors for Successorship Determinations

The three successor-in-interest factors are:

  1. Same Job Opportunity: The job must remain unchanged in terms of pay, location, description, and requirements.
  2. Successor’s Burden of Proof: The successor must prove eligibility as of the priority date and provide the required evidence from the predecessor.
  3. Transfer and Assumption of Ownership: Fully describe and document the transfer of ownership from predecessor to successor.

Consulting with Immigration Experts

Given the complexities involved in the PERM process during an acquisition, consulting with immigration experts is crucial. They can provide:

  • Legal Advice: Ensure all changes comply with immigration laws and regulations.
  • Application Assistance: Help with updating and submitting necessary forms and documents.
  • Guidance for Employees: Offer support to affected employees throughout the transition.

Conclusion

Company acquisitions can complicate the PERM process, but compliance can be maintained with careful planning and expert advice. Regularly review and update PWDs and Form 9089 to reflect any changes resulting from the acquisition. Always consult with an experienced immigration lawyer for detailed assistance.

Schedule a Consultation with an Immigration Lawyer

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