The American Immigration Lawyers’ Association has issued a commentary on the issue of changing ownership of companies and that impact on the labor certification/PERM process. The Department of Labor’s approach is very similar to that of USCIS when adjudicating I-140 petitions: if the new company is a “successor in interest” to the original company, the process will proceed without having to redo the recruiting, prevailing wage, etc.
AILA Doc. No. 21042330 | Dated April 23, 2021
AILA’s Department of Labor Liaison Committee1
PERM applications are not only job-specific but are also employer-specific. When a PERM petitioner (“Company A”) undergoes a corporate change, such as an acquisition by another company (“Company B”) into which the PERM petitioner is merged, the question arises, whether Company B can continue with the PERM process already initiated by Company A? That is, can Company B file the ETA Form 9089, Application for Permanent Employment Certification, as the petitioner using the prevailing wage determination and recruitment efforts under Company A’s name or even Federal Employer Identification Number (“FEIN”)?
The concept of successor-in-interest (“SII”), where one legal entity steps into the place of another legal entity due to a corporate acquisition, is firmly established by USCIS for the post-PERM filing stage (i.e., at the Form I-140 immigrant petition stage). However, despite a 2010 Policy Memorandum, it is not clear how DOL handles corporate changes.2
Guidance on Successor-in-Interest Pre-PERM Filing
While the PERM regulations at 8 CFR Section 656 are silent on the concept of SII, DOL does provide some guidance under its posted FAQs. While DOL FAQs are not regulatory, they offer practical guidance that can be used. In particular, see the FAQ Round 10 from 2007 titled “Advertisement Content.”3 There, #10 states:
After completing our recruitment, but before filing the ETA Form 9089, our company’s name was changed after it was wholly acquired by another company. Does the Company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?
The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer’s legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer’s name shown on the advertising used to recruit for a job opportunity and the employer’s name on the submitted ETA Form 9089, the employer must be prepared to provide documentation – in the event of an audit – proving that it is the success in interest, a determination made based on totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity. [emphasis added.]
Pre-PERM Successor-in-Interest Situations in Practice
Employers and practitioners should be mindful that making an SII argument on ETA Form 9089 could lead to an audit, or possibly even a denial if the certifying officer is not aware of the FAQ guidance or is not sufficiently satisfied by the “totality of the circumstances” that a successor employer has provided. One argument in favor of denial that the DOL could raise is that applicants responding to the labor market test efforts listing Company A as the employer were not sufficiently apprised of the employer’s actual nature, now Company B.
While these are legitimate concerns, however, in practice, practitioners have not yet seen such circumstances as a trigger for an audit. Instead, practitioners have seen certification of such PERM applications without an audit where the details of the SII situation have been disclosed upfront. One strategy that has worked in practice is to state in the ETA Form 9089, Section K a. Job 1, 1. “Company B (formerly Company A)” and K. 9. Job 1. Job Details “**Company A was acquired by Company B in mm/yyyy; Company B is the successor-in-interest to Company B.**.” Practitioners should use the free form sections of ETA Form 9089 to disclose any relevant facts regarding the corporate change to clarify any questions or doubts that a certifying officer may have.
However, employers and practitioners should carefully assess upfront whether it is feasible to make an SII argument and maintain relevant documentation, applying a test similar to the standards set forth by USCIS for SII at the I-140 stage.4 At the I-140 stage, these include the similarity of the job opportunity, the current employer’s ongoing ability to pay, detailed explanation of the corporate change, and evidence of the assumption of liabilities when changing ownership.5 As a practical matter, it is best practice for practitioners to advise employers of an audit and denial risk, even if it is a relatively small one under the current adjudication practices.
The risk of an audit appears greater than the risk of a denial simply because the DOL FAQ states that the employer must be able to show that an SII relationship exists, and it would be easiest for the DOL to establish that via an audit. If the DOL has not audited the case despite the employer having disclosed the SII, the risk of an outright denial should be very small simply because of the existence of the DOL FAQ, which at least confirms that the DOL is aware of SII situations and has made an effort to provide a solution. If the DOL does issue an audit, there is a risk that it will not agree with the SII argument that the employer provides, but that is essentially the same risk as at the I-140 stage
Of course, if there are any doubts about whether a substantiated, bona fide SII argument can be made, the better approach would be to obtain a new prevailing wage determination in the new company’s name and conduct labor market tests in the name of the new company.
While the DOL regulations do not address what to do where there is an SII situation prior to filing a PERM application, the best guidance to date is what the DOL has raised in its FAQ. Practitioners have found that certifying officers appear to accept a detailed SII argument made on ETA Form 9089.
1 Special thanks to DOL Liaison Committee member Susanne Heubel for her work drafting this document.
2 See USCIS Adjudicator’s Field Manual, Chapter 22, Pages 13 and 116), and Policy Memorandum, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22.2, AFM Update AD11-4 (Dec. 22, 2010).
3 See DOL Round 10 PERM FAQs (May 9, 2007), AILA Doc. No. 07051160.
4 For a visually helpful overview, see USCIS Q&A on Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Worker, available at AILA Doc. No. 10012269 (posted Jan. 22, 2010).
David Swaim & Associates, P.C.