Alice Yardum-Hunter Speaks on Mergers and Acquisitions and Immigration Law

For Provisors, Ms. Yardum-Hunter spoke on mergers and acquisitions in immigration law for the M&A group of Provisors. 

The handout provided a listing of questions to ask whenever a foreign born employer, or overseas traded stock, or foreign employees are involved in a new or existing commercial venture.

Those questions are repeated below and in the Speeches section under the Publications tab on our website.

Immigration issues in the mergers and acquisitions context arise when a purchasing company is owned in whole or part by alien owners or foreign corporations, or when the entity purchased/acquired or opened has alien workers. 

Questions to ask during a purchase/sale involving alien owned companies seeking to purchase and acquire immigration status through such entity:

1. What sort of entity formation is envisioned for the future (corporation, LLC, limited partnership)?
2. Who owns the new or purchased entity?
3. How many shares and what percentage of ownership? 
4. Is the purchasing or new company a subsidiary of another entity? Who owns the parent?
5. Are there other foreign entities involving the same owners or some of the same owners, and what is the relationship between those and the one making the purchase?
6. What sort of entity formation is envisioned for the future (corporation, LLC, limited partnership)?
7. Do the purchasing owners expect to acquire temporary, permanent or both immigration statuses, sequentially, as a result of the purchase?
8. What is the employment history of the purchasing aliens?
9. What is the expectation of continuation of foreign entities after the U.S. entity is owned?
10. What is the nationality of the owners or if publicly traded, the nationality of the stock market on which the stock is traded?
11. What is the anticipated length of the investment?
12. If there are foreign entities, how many employees are there abroad and at the company already?
13. What is the relationship between the type of business abroad and in the U.S.?
14. What is the preferred type of transaction? (assets and liabilities?)

Regardless of whether the purchasing company is alien owned, here are some questions to ask if there are alien workers at the company to be acquired:

1. How many total employees are there at the acquired/new company?
2. What status do the foreign workers have?
3. How many are there?
4. When do their statuses expire?
5. When were they hired?
6. Does the new owner expect to keep them on board?
7. How long is their expected employment?
8. Do they have dependents?
9. How are they paid (payroll or contractors)?
10. What roles do they serve/how critical are such persons?

To determine whether there are immigration compliance issues, ask:

1. What are the I-9 policies of the company?
2. Do they maintain I-9s?
3. Do they self-audit their I-9s?
4. Have they ever had an I-9 inspection?
5. Have they ever had an ICE site visit?
6. Has the company to be purchased/acquired ever sponsored any foreign workers in the past? Outcomes?
7. Are there pending immigration applications for foreign workers in the pipeline? What is the status of those applications and what are the case histories of them?
8. Does the company have any disgruntled U.S. workers?
9. Has the company ever received any Social Security No-Match letters?
10. Is the employer a federal contractor?
11. Does it participate in E-Verify?

Immigration counsel should not be the last to be involved in the decision of how a foreign owner acquires an entity in the U.S., whether there are alien workers on board or not. When a U.S. owned entity acquires such in the U.S., it must determine whether there are alien workers and structure the transaction so as to keep workers expected to stay on board in lawful status. Incorrect ownership structure can put alien workers out of status and employers at risk of employing workers not authorized for employment in the U.S.