The following issues should be vetted by appropriate individuals within the company's Legal Department as far in advance as possible of any contemplated merger, acquisition, or divestiture. Due to the extremely complex nature of immigration rules and liabilities, involved with such transactions, we strongly recommend that immigration counsel be consulted with respect to each of  the points addressed below:

  • Check I-9 forms to see if the forms exist for all current employees, and whether l-9s for terminated employees have been properly maintained. Verify current employees against payroll records.

  • Check to see if I-9s are completed correctly. Note that I-9s need not be maintained for employees hired before November 1, 1986. Assess potential civil and/or criminal penalties .

  • Review copies of all correspondence or other communications from DOL and/or USCIS related to any I-9 inspections or investigations, as well as copies of any agency responses to same.

  • Review Labor Condition Application ("LCA") public inspection files to ensure that such files have been properly maintained for affected H-1B, E-3, and certain TN-2 employees. Verify prevailing wage information on the LCAs against payroll records to determine whether there have been prevailing wage violations.

  • If applicable, determine whether the employer is "H-1B dependent."

  • Determine whether new or amended H-1B petitions must be filed.

  • Review nonimmigrant status of all affected employees as well as copies of all underlying nonimmigrant visa petitions and approvals. Determine whether change in ownership would invalidate current visa status and determine whether new or amended petitions must be filed.

  • Review copies of all applications for labor certification, results of recruitment, PERM audit files, pending audits, and follow-up correspondence, including Notices of Findings, if any.

  • Review status of all pending legal permanent residency applications to determine what effect change in ownership will have on these cases. Determine whether new or amended petitions or applications must be filed in order to preserve these cases.

  • Create and review a list of all "independent contractors," B-1 business visitors, L-1B and Visa Waiver Program Business Visitors assigned to customer projects in any capacity.

Please note that in many cases, certain actions concerning U.S. immigration issues may have to be taken for particular employees in order to avoid disruption in employment services and to ensure compliance with applicable laws.



It is crucial for immigration professionals to be involved at the beginning of a deal (particularly after the immigration due diligence has been completed and well in advance of closing).

The consequences of failing to perform immigration due diligence can be severe: There could be potential liability for the acquired company's IRCA violations, and the creation of a new legal entity and/or new tax ID number could have a significant impact on the visa status of a new company's nonimmigrant workers.

There are several immigration-related risks associated with mergers and acquisitions :

  • Potential revocation of nonimmigrant petitions;

  • Violations of nonimmigrant statuses of foreign nationals;

  • Violations of immigration laws by the company with civil fines and penalties; and/or

  • Debarment from filing employment-based, nonimmigrant, and immigrant visa petitions.


It is important to ensure that the target companies are in compliance with immigration laws, including:

  • I-9 Compliance;

  • Employment Applications;

  • Record Retention; and,

  • Adhering to established policies and procedures (including oversight personnel).


The immigration due diligence checklist includes:

  • Reviewing nonimmigrant records to determine if amended petitions are required. Most statuses do not carry-over to new employer so, without amendments filed prior to closing, the new company may be in violation of IRCA rules;

  • Communicating findings to personnel in charge of immigration matters; and

  • Ensuring compliance with corporate policies and immigration laws.


In the case of divestitures, it is important to ensure that the selling company has documentation in order to: 1) increase bargaining position with buyer; 2) formally withdraw support of nonimmigrant petitions; 3) and formally withdraw support of other petitions, if desired.

More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.