Switching Employers and Maintaining GC

[ris123]

Hi Q,

I really appreciate if you can give me some advice in regard to my situation:

Company A filed my EB2 extension for my green card (GC) early last year and that got approved in May 2013. On behalf of my EB2 they filed for my H1 extension that got approved for 3 years in October 2013. On January 1st 2014 Company A sold the division of company in which I was working to Company B. Now we have been informed that Company B will be taking care of all our Immigration matters, payroll as well as other benefits and compensation. In my situation my GC (Priority Date September 2008) is getting processed by Company A, but now I will be on Company B’s payroll starting from this month.

I have following questions:
a.) If Company B will be running my payroll, then do they need to transfer my H1B under their company’s name and do they need to inform USCIS?
b.) What should happen to my GC? Is it OK to have it getting processed with Company A or is there a process through which it should get moved to Company B?
c.) I am totally unaware of these kinds of scenarios, and keeping in mind that if lucky, I might see my priority date getting current this year, I am really panicking and would really appreciate if you can guide me through.

[qesehmk]

ris - welcome to forum. I am not a lawyer but I help out people with what I know.

In your case the best thing I can tell you is:

Hi Q,
a.) If Company B will be running my payroll, then do they need to transfer my H1B under their company’s name and do they need to inform USCIS?

I think this falls under change of ownership. So yes there is some formality involved to inform USCIS. Please google change of ownership and H1.

Hi Q,
b.) What should happen to my GC? Is it OK to have it getting processed with Company A or is there a process through which it should get moved to Company B?

Either is possible. Green card is for future employment. So either A or B could process it and you need to join A or B after GC approval (or least have that intent) when GC is being processed. B can take over current GC as well. I don't remember the specific name but may be others can chip in.

[vizcard]

Hi Q,

I really appreciate if you can give me some advice in regard to my situation:

Company A filed my EB2 extension for my green card (GC) early last year and that got approved in May 2013. On behalf of my EB2 they filed for my H1 extension that got approved for 3 years in October 2013. On January 1st 2014 Company A sold the division of company in which I was working to Company B. Now we have been informed that Company B will be taking care of all our Immigration matters, payroll as well as other benefits and compensation. In my situation my GC (Priority Date September 2008) is getting processed by Company A, but now I will be on Company B’s payroll starting from this month.

I have following questions:
a.) If Company B will be running my payroll, then do they need to transfer my H1B under their company’s name and do they need to inform USCIS?
b.) What should happen to my GC? Is it OK to have it getting processed with Company A or is there a process through which it should get moved to Company B?
c.) I am totally unaware of these kinds of scenarios, and keeping in mind that if lucky, I might see my priority date getting current this year, I am really panicking and would really appreciate if you can guide me through.

My recommendation would be do everything through company B if possible. there are lot of tricky things going on though that you need to be aware of.

First related to H1, you need to inform USCIS about your H1 transfer.

Related to the GC, I'm not clear what "filed my EB2 extension for my GC" means. Are you using EAD? If you are on EAD, then its a simple AC21 situation. The rest of this post assumes you are NOT on EAD.

Option A - you could probably ask Company A to continue sponsoring your GC. But that tells the USCIS that Company A intends to hire you in the future and Company A should be willing to say "yes" to that in the form of documentation. I'm not sure what the implications are (whether they would need to show an offer letter/EVL or whether a simple yes/no is fine).

Option B - The safer but lengthier option is to start your PERM over again with Company B while retaining your old PD. This keeps it clean. But as I said, this is longer because you have to start over and you could possibly miss out this years window.

[Kanmani]

a.) If Company B will be running my payroll, then do they need to transfer my H1B under their company’s name and do they need to inform USCIS?
Whenever there is merger/acquisition, the acquired company is called Successor in Interest(SI). The SI is responsible for all legal affairs of the company they acquired. In general they don't do it employee by employee, instead they inform the authorities about the acquisition. Please check with your new employer whether they have documentation related to Successor in Interest. If so, you don't need a H1 transfer. I have not come across part acquisition and SI rights.

b.) What should happen to my GC? Is it OK to have it getting processed with Company A or is there a process through which it should get moved to Company B?

If there is any SI agreement and documentation, then company B is responsible for all your GC related proceedings. Company B may need to file a new I-140 (amendment ) . PD will be retained. No perm is required.