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  #1  
Old November 13th, 2002, 10:45 AM
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Question Passport Stamping..

The H1B visa stamp on my passport is that of old company. Since
taking up the new job, I haven't sent my passport for stamping
to INS, nor do I intend to do it (it takes not less than 3 months).
In the meanwhile, my company merged with another one and
so the name has changed. I plan to be in India soon, and need
the passport stamped. The trouble is, the H1-B Petition is in
the company's old name. So, my questions are about stamping r,
1. is it a problem in first place, that petition has a different name?
2. What extra documents are required, other than the usual ones?

Thx,
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Old November 13th, 2002, 10:53 AM
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Re: Passport Stamping..


1. is it a problem in first place, that petition has a different name?


YES. This can definitely be a problem cos a friend of mine is facing the same in India now. Just cos the company name changed the process has got delayed by around 3 weeks, and still no news. The INS guys seems to be checking.


2. What extra documents are required, other than the usual ones?


Letter from the company saying the same. Original.
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Old November 13th, 2002, 11:11 AM
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Disclaimer do not consider this legal advice. Seek advice of a lawyer.

OK Ravi,

There are various cases which need various remedies. Its not a one size fit all. Yours seem to be a slightly complex issue. Mergers & Consolidations and Name Change are two different issues.

Let me give you what my understanding of the combination of the two is. When only the name of the company changes, no new or amended petition has to be filed. The regulations proposed by the INS specifically state that a change in name of the petitioning entity (read company), standing alone, is not a material change. Note, however, that amending the I-129 even though it is not required may prevent the beneficiary from experiencing undue difficulty on future entries into the United States.

Meaning if your company went ahead and did an I-129 Ammendment then you might have a monkey wrench thrown in to complicate issues. You seem to squirt this thru another clause though.

Merers and Consolidations. The law for that says..

A new legal entity created as the result of a merger or consolidation is clearly a “new employer,” and a new petition, supported by a new LCA, must be filed.



So if your company merged with another one and underwent a name change, your employer has to file a new H1.


By contrast, when existing business entities are simply restructured or consolidated, there may be no new entity created as a result of the change. In the latter case, the surviving company may assume all rights, duties and obligations of the H-1B sponsor which it has absorbed, yet the name, payroll or other aspect of the employing entity may change.

Note: The operative word is "MAY" which means these are mearly tailored for standard cases and might not be applicable to your case.

There is another type of merger that do not result in creation of a new legal entity. These must be analyzed on a case-by-case basis, to determine whether “the petitioning entity continues to remain the alien beneficiary’s employer.” (presuming that no other material change exists in the terms or working conditions).

This is especially true where most mergers and consolidations are creatures of statutory law, under which the surviving or consolidated corporation is required to assume all liabilities, obligations and penalties of each of the constituent (subordinate) corporations. Accordingly, statutory mergers of this nature would appear to agree (comport) even with the narrow view of “successor-in- interest” recognized by the Service.

Dont want to confuse you with legal mumbo jumbo but if you can clarify the nature of merger I might be better able to advice you.

Also please note that Mergers are not Acquisitions which are treated differently.

Hope that helps.

From what info you have given, you seem to fall into the category highlighed in red.
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Last edited by GpeL; November 13th, 2002 at 11:13 AM.
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Old November 13th, 2002, 11:17 AM
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Biggie,

If your friends case is just a name change then he should not have problems unless an ammended i129 was filed by the employer and I would think he would know better than that when I myself know its not required.
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Old November 13th, 2002, 12:52 PM
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Pelu...so in simple terms, if the company has filed an ammended I129, it's bad, rite?

I think his company got merged with another one. Both are american companies. The name has changed, but i am not sure about I129.

Suppose I129 has got filed, then what is it that he's gotta do? Is he now required to file for a new H1 once again?? The whole 2 month process?

Or just a new LC is enough?

How much time does it take for a new LC?
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Old November 13th, 2002, 01:05 PM
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Biggie, I-129 means a new H1 petition for the non immigrant worker. No new application. If the name change prompted the employer to reapply for all his employees (I doubt it) it will be a pain in the posterior.

LC is not enuf for anything stand alone dude. LC for non immigrant workers used to take 10 days. Now I dunno cos I have recently not applied for any.
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Old November 13th, 2002, 01:10 PM
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Quote:
Originally posted by Big-G

I think his company got merged with another one. Both are american companies. The name has changed, but i am not sure about I129.
Merger + Name change.. he has to get a new H1 applied for him.

Again Merger != Acquisitions

If it was an Acquisition, the laws are little different and he might even not need a new Petition.
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Old November 13th, 2002, 01:43 PM
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My company was acquired

Thanks for the replies.
Well, I am sorry about some wrong facts I presented earlier.
It was not a merger. My company was acquired by a different
company. The old company doesn't exist anymore.
However, there is another troubling issue. The new company is
not an American one. Has headquarters in Europe.
Does it make matters even worse?
GpelBhai, any idea how much do the rules differ in the case of
an acquisition?

Last edited by Ravi; November 13th, 2002 at 01:47 PM.
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Old November 13th, 2002, 02:05 PM
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According to INS, if the successor company undertakes all rights, liabilities, assets and privileges of the previous employer - the H visas are valid even after the takeover.

In layman English, get an opinion from a lawyer in writing. Otherwise, all H visa holders could be out of status.

Basically an acquisition means that the successor company undertakes all rights, liabilities, assets and privileges. But then also there should be no material changes to the working conditions or the terms to be deemed "successor-in-interest".

You have to clarify those things with your employer.
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Old November 13th, 2002, 02:06 PM
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By the way it being HQ in europe has nothing to do with its existance in USA as it has to be a viable US corporation to do business here so that's a non issue.
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Old November 13th, 2002, 02:10 PM
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Here is the lawyer speak abridged version

Acquisitions

A new or amended petition is generally not required when the petitioner’s stock has been acquired, presuming that (1) it is only ownership of the petitioning entity which has changed, (2) the petitioning entity continues to be the alien’s employer, and (3) the owner(s) assume all of the previous owner’s duties and liabilities, including those of the prior owner relating to the filing of the labor condition application.

Where the petitioning company’s ownership does not change but its assets have been acquired, the Service will also recognize the concept of “successor-in- interest,” presuming that the purchaser has assumed both the assets and liabilities of the portion of the company that employs the H-1B have been assumed. This rule may have very limited application, however, as asset acquisitions are often pursued in lieu of other arrangements precisely because the acquiring company is not willing to assume the liabilities of the company purchased.

As with other changes, situations involving acquisitions must be assessed on a case-by-case basis.
Where no new or amended petition is required, the purchasing company should notify the Service of the purchase of the H-1B sponsor if it petitions for extension of stay for affected employees.
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