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Transitioning Cos. Can't Forget Pending Green Cards

By Hector Chichoni
September 18, 2018

Transitioning Cos. Can't Forget Pending Green Cards

By Hector Chichoni
September 18, 2018

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Hector Chichoni
Hector A. Chichoni

When sponsoring foreign national employees for employment-based “green cards” (lawful permanent residence in the U.S.), there are many factors an employer must consider, particularly when restructuring, relocating or downsizing its operations, to avoid the consequences of noncompliance under current U.S. immigration law.

Each situation is unique and must be carefully analyzed. While there are some well-established U.S. immigration laws and regulations an employer can use for guidance, agency rules are not so well-established. Agency rules often change leading to different interpretations and results.

For example, in an effort to strategically reduce its operations, a U.S. employer may consider moving its main office to another country and keep a virtual office in the U.S. How would this affect the status of multinational executives and managers with immigrant petitions still in process?

From a U.S. immigration perspective, this situation could be problematic because the employer may no longer maintain actual levels of U.S. systematic and regular business operations, workforce and presence stated at the time the green card applications were filed (most immigration forms require stating corporate facts under penalty of perjury).

Indeed, instead of growing, which is viewed as a necessary component when granting lawful permanent residence status applications, U.S. Citizenship and Immigration Services may view this as the employer slowing down its business growth, reducing personnel and minimizing its U.S. presence, making granting green cards less certain and open to questioning by the government. 

Minimum Operations Required

In order to continue the employment relationship for foreign national employees with green card applications in process, an employer must maintain its operations as documented in the initial filing and must maintain an appropriate employment relationship.

With regards to the permanent residence process, an employer is expected to file substantive applications and documentation on behalf of the employees being sponsored. The employees will in turn be subject to an in-person interview with USCIS. As part of the interview process, the employee will be required to confirm the nature of his or her employment and answer questions to confirm the company is operating as documented in the filing.

Specifically, to continue sponsorship of the green cards after restructuring, an employer must demonstrate the following:

  1. Hold a “qualifying relationship” with a foreign company. The employer’s legal structure must remain active and in compliance with U.S. regulations and remain connected through a legal relationship (affiliate, subsidiary, parent, branch, etc.). In the case of multinational executives and managers the “qualifying relationship” must be specifically with the previously employing affiliate, subsidiary, parent, branch, etc., outside of the U.S.;

  2. Continue “doing business” as an employer in the U.S. and in the country where the “qualifying organization” is operating until after the sponsored employee obtains the green card. “Doing business” in this context is defined as the regular, systematic and continuous provision of goods and/or services by a qualifying organization;

  3. Show “ability to pay the wage” at the time the priority date was established. The demonstration of financial ability must be from the time the priority date is established and continuing until the beneficiary obtained lawful permanent residency. The employer will be required to produce evidence in the form of its annual report, tax return or audited financial statement;

  4. Provide required and specific evidence, which, under the present U.S. immigration environment, means detailed and extensive documentation, even when the employer is a well-established company. Therefore, the employer should be prepared to provide detailed and extensive documentation to establish its ability to sponsor green cards for its employees; and

  5. Maintain the employment of the sponsored employees in keeping with the statements made on the I-140 filing including job duties, work locations, and payment of wages in the amount equal to or greater than stated in the filing.

The requirements above are the “bare minimum” acceptable requirements in the hope that if complied with, could permit the continuation and final approval of the currently pending green card applications. 

However, these are not an insurance in avoiding the trigger of future government inquiries and audits and investigations, which could lead to other agencies (i.e. IRS, U.S. Department of Labor, etc.) finding information, which could result not only in the denial of the green card applications, but also bring about other serious consequences.

Lack of compliance with these requirements could also deny an employer the ability to respond positively and provide evidence necessary to overcome potential notices of intent to deny, requests for evidence, and significantly impair the ability to appeal denials.

Ultimately, investigations and audits could also lead to more problematic issues such as monetary penalties, civil charges, etc. Needless to say, it is extremely important that employers retain experienced immigration lawyers to guide them through this process.

In summary, in order to continue permanent lawful residence sponsorship for key employees through and after downsizing or restructuring operations, it is strongly recommended that the employer continue operating the business, which includes keeping a financially functional and operational office location open; maintaining personnel in the office with an active payroll; continuing to conduct business regularly and systematically; remaining compliant with the terms of the I-140 filing; and be fully compliant with the law.

Hector A. Chichoni is a partner at Duane Morris LLP.

Reprinted with permission of Law360.