The Office of Foreign Labor Certification has issued guidance in the scenario where a corporate restructuring or sale of a business has occurred and there are H-2A employees working under that employer. Once the successor in interest has become the employer of the workers under the H-2A certification, the employer may still use the certification that was issued, but only if all obligations, liabilities, and undertakings from that certification are assumed. Though there is no explicit process in which the certification may be assumed, interpretations of the H-2A regulations make it clear that the successor in interest entity may still use the certification.
Prior to employing the workers under the successor in interest entity, the Chicago National Processing Center (NPC) should be notified by submission of the following: a sworn written statement that includes the certification ETA number ; the business situation that resulted in the successor in interest; the contact information and legal name of the successor in interest entity; and confirmation that the successor in interest entity will assume all obligations, liabilities, and undertakings arising from the certification. A copy of the submission to the Chicago NPC should also be added to the employer’s document retention file. It should be of note that the Chicago NPC will keep the submission for its files, but not to necessarily confirm or deny the validity of the successor in interest analysis.
Under 20 C.F.R. §655.100(b), all circumstances will be viewed in totality. The factors that may be considered when determining whether a successor in interest has occurred includes, but is not limited to:
- Substantial continuity of the same business operations;
- Use of the same facilities;
- Continuity of the work force;
- Similarity of jobs and working conditions;
- Similarity of supervisory personnel;
- Whether the former management or owner retains a direct or indirect interest in the new enterprise;
- Similarity in machinery, equipment, and production methods;
- Similarity of products and services; and
- The ability of the predecessor to provide relief.