Published:  August 5, 2013

For employers and the workers they petition for immigrant, or “green card”, status, a change in employer ownership can sometimes be problematic and present circumstances requiring the parties to take proactive steps to keep the case on track.  Whether the worker is already in the U.S. and seeking to adjust status here, or they have been waiting overseas to process their immigrant visa at their nearest U.S. consular post, it is not uncommon for employers to undergo change in structure or ownership while the parties await visa availability.  This is particularly true when it comes to the long lines that plague the Employment Based 3rd Preference or Unskilled Worker categories.

There is a wide spectrum of scenarios that play out when it comes to changes in employer circumstances and the types of remedial measures the parties may be required to take to maintain the status quo.  For example, on October 1, 2006, the Fresh Fields nursing home files an immigrant visa petition for Ellie Mae, a registered nurse in the Philippines, to enter the U.S. to perform ordinary R.N. duties.  Although the petition is approved within 6 months, the parties must still wait in the Employment Based Third Preference immigrant visa line, a line that has moved at snail’s pace for Philippines based workers, since only now (Summer 2013) are immigrant visas becoming available for October 2006 filings.  However, in the 6 ½ years that have passed since petition filing, the employer went bankrupt, and a new nursing home conglomerate – Big Fields – took over operations at the Fresh Fields facility.

Big Fields must start the petition process all over again, BUT, the transfer of the previous petition’s priority date, or place in line, can be facilitated in most cases.  That is, once the new visa petition is approved – which sometimes can take place in a matter of weeks via expedited “premium processing”, the worker is able to assume their previous place in the Employment Based 3rd Preference visa line and immigrant visa processing can continue without further interruption or delay.

On the other hand, if the Fresh Fields to Big Fields change involved no transfer of ownership, but merely a change in name, no new visa petition is needed to continue the visa process, just a clarifying correspondence confirming the name change.

What if Fresh Fields simply goes out of business after visa petition approval (and while awaiting visa availability) and no change of ownership takes place?  Hope should not be lost, as any new qualified employer in the U.S. can start the visa petition process over for Ellie Mae, and Ellie Mae’s priority date from the Fresh Fields petition can be transferred to the new petition…..that is, assuming Ellie Mae can find a new employer to petition her.

Given the many years of waiting employers and their workers are faced with in the Employment Based 3rd Preference, and Unskilled Worker Categories, circumstances like a change of ownership structure, change of ownership, change of name or change of location will require the parties to be proactive in taking steps that will secure the quickest, most efficient path to keep the immigrant visa process on track.

Other circumstances:  For “unskilled workers” or “skilled workers” other than Registered Nurses and Physical Therapists, the new employer circumstances may sometimes also very well dictate the filing of a new PERM, Alien Labor Certification application – the Department of Labor component that is usually the first step in the employment based immigrant process for non R.N. or P.T.’s.  Still though, such new filings may ultimately allow for the reinstatement, or transfer, of a priority date from a previously approved application to the new petition.

Further, workers who are already in the U.S. and are undergoing green card processing here, a change in an employer’s ownership structure or even a change in employer, while an “adjustment of status” application is pending, may require even less action to keep the process on track – since rules relating to “portability” (which protect the employee)  may apply.

In any case, employers and their workers are advised to be proactive and take a close look at and assess the impact new circumstances –as outline above – can have on the petition process.  That way, effective and efficient remedial measures can be taken so as to ensure that the parties achieve their mutually beneficial goals without needless delays.

PUBLISHED August 5, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois