July 26, 2006 | In: 范毅禹律师
Business Transactions 中的 Immigration 问题
在公司进行如合并，购买，融资等 Business transactions时，需同时考虑到其外籍雇员的身份问题，因为有时候可能因此而导致其雇员失去在美合法身份。以下为一些案例, 以供大家参考：
During the excitement of completing complex business transactions, immigration considerations are often overlooked. However this should not be the case. When changes are being made to the corporate structure of the company, such as a merger, acquisition, asset sale, stock sale, joint venture or a spin-off, immigration due diligence should be an important part of the transaction. Depending on the type of transaction, pivotal employees of the company could lose their status as legal aliens.
A recent article by Mark Ivener offers a couple of examples when a lack of immigration due diligence could lead to problems:
Example 1)
A French company has a U.S. division whose president is a French national here on an E-2 investor visa. (This type of visa is granted under commerce treaty provisions, where the foreign company makes a substantial at-risk capital investment in a bona fide business in the U.S.) A U.S. company then acquires the French company. Post-deal, the president’s visa is no longer valid because the company is no longer French-owned. Traveling on the visa could be classified as entry fraud or, at a minimum, unauthorized employment.
Example 2)
The president of a subsidiary of a foreign company is in the U.S. on an L-1A intra-company transferee visa. (This visa is issued to executives who have worked for a foreign company for at least one year before being transferred to a similar position with a U.S. parent, branch, subsidiary or affiliate company.) After an acquisition, the employing company is no longer a subsidiary. Therefore, the visa is no longer valid, making the employment unauthorized in the eyes of U.S. Citizenship and Immigration Service.
Both of the individuals in the examples may suffer long-term consequences of violating immigration rules, stemming from the fact that all visa applications ask whether the applicant has ever violated a previous status or committed a willful misrepresentation upon entry to the U.S.
Doing an immigration due diligence analysis can streamline the closing process, and also minimize the company’s exposure to potential risk resulting from noncompliance with federal immigration regulations.
A proper due diligence should include:
1. compiling a list of all employees that are affected by immigration laws. 2. review of their immigration status 3. depending on business transaction, amended or new petitions will need to be filed with the USCIS
Prior to finishing the business transaction, companies need to perform a comprehensive analysis of all ownership and structural changes. Changes in the company’s name, tax ID number, job duties as well as other factors could immediately invalidate a key foreign worker’s employment authorization.
When dealmakers are making complex business transaction, they often overlook immigration issues. However depending on the makeup of the company’s workforce, such an oversight could prove to be very costly in the long run. A thorough due diligence process should uncover and resolve any immigration issues, ensuring a smooth transition through any complex business transactions.
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