When a company is bought, merged, or undergoes major structural changes, the timing of Successor-in-Interest (SII) filings can make or break an employee’s ability to preserve existing immigration benefits, especially for H-1B workers and those pursuing adjustment of status.
A reorganization may look like a back-office change. USCIS may treat it as a new employer.
1) Overview: why Successor-in-Interest matters in reorganizations
“Successor-in-Interest” describes a situation where a new or reorganized employer steps into the immigration shoes of the prior employer when the business changes name or structure, but the job offer and the employer’s obligations continue.
USCIS looks closely at SII after corporate changes because many employment-based filings are tied to a specific petitioning entity. If that entity changes, USCIS may ask whether the new entity truly assumed the old one’s rights and duties.
Think of it like taking over a lease. Paying rent is not enough. The new tenant must also assume the lease obligations in a way the landlord recognizes.
SII questions commonly come up after:
- Mergers and stock purchases
- Asset purchases (especially where only parts of a business move)
- Spin-offs and internal reorganizations
- FEIN/EIN changes, payroll entity changes, or employer-of-record shifts
SII can matter for both:
- Immigrant benefits (PERM-based I-140 strategies, priority date planning, adjustment of status paths)
- Nonimmigrant benefits (H-1B petitions tied to a specific employer, and related compliance items such as LCA obligations)
As of January 27, 2026, USCIS and DHS materials continue to emphasize continuity: who employs the worker, who pays the wage, and who carries the legal obligations.
2) Official guidance and criteria for Successor-in-Interest (SII)
USCIS ties SII to a simple idea: file petitions while the underlying basis remains valid and the job offer still exists. A key policy statement appears in the USCIS Policy Manual and is often quoted in SII discussions.
Policy snapshot (date and wording used in USCIS guidance):
May 18, 2021: “When a company is bought, merged, changes corporate structure, or significantly changes owners, the new or reorganized company may demonstrate to USCIS that it can be considered a successor in interest (successor) of the original company. The employer must file such petitions within the validity period of the permanent labor certification.”
USCIS relies on a three-part SII test drawn from Matter of Dial Auto Repair Shop, Inc. and reinforced by the Neufeld Memorandum dated August 6, 2009.
In practical terms, USCIS looks for three things:
- Same job opportunity. The successor must offer the same job described in the labor certification. “Same” usually means the same core duties and role, not just the same title. USCIS may scrutinize changes in worksite, reporting line, or whether the position still matches the occupation described in the PERM filing. Some location changes can be minor. Others can be material.
- Ability to pay the proffered wage. USCIS generally expects the successor to show it could pay the offered wage starting from the priority date and continuing through the ownership transfer. That time element is often missed. The financial story must cover the whole span.
- Documented transfer and assumption. USCIS typically expects documentation showing the corporate transaction and the assumption of immigration-related rights and obligations. The point is not just that the business was acquired. USCIS wants proof that the successor took on the job offer and the liability to employ the worker under the terms that were promised.
Note on timing: A permanent labor certification generally supports an I-140 only if the I-140 is filed within the 180-day validity period.
Below are the principal regulatory and policy points to consider; interactive tools will be provided separately for a structured look at timing windows and specific citations.
- Labor certification to I-140 timing: I-140 generally must be filed while the labor certification remains valid. Late filings can fail even if the job is real and ongoing.
- SII three-factor test: Successor must show same job, ability to pay, and documented assumption; evidence must connect the transaction to the job offer and obligations.
- H-1B amendment requirement: Material changes can require an amended petition under 8 CFR 214.2(h)(2)(i)(E). FEIN/EIN and employer identity changes can trigger analysis.
- Late-filing discretion concepts: Regulations such as 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) outline circumstances where USCIS may excuse some late filings; often framed as nunc pro tunc (NPT) requests.
- H-2B successor/predecessor risk: Effective January 17, 2025, prior serious violations can affect petition outcomes, increasing adjudication risk during corporate transitions.
3) Key risks of late filing after a corporate change
Delays are common during mergers. Immigration deadlines do not pause.
Immigrant path risks (PERM/I-140)
A PERM-based plan is time-sensitive because the labor certification is not open-ended. If the successor tries to file an I-140 after the 180-day validity period, USCIS may deny it because the required foundation expired.
Even where a timely I-140 already exists, late or weak SII documentation can still complicate later steps, including extensions and adjustment filings that depend on a clear employer story.
Nonimmigrant risks (H-1B)
H-1B is employer-specific. After a reorg, USCIS may ask whether there was a “material change” that required an amended petition under 8 CFR 214.2(h)(2)(i)(E).
A FEIN/EIN change does not automatically equal a required amendment in every scenario, but it often triggers a closer look at who the employer is. Payroll control, supervision, and worksite control matter.
LCA coverage can also become a pressure point. If the new entity did not properly assume Labor Condition Application obligations, a worker can face questions about whether employment remained authorized during the transition.
Location moves after restructuring raise a second issue. Some moves need an amended H-1B petition. Others require only LCA steps. The facts control the answer.
H-2A/H-2B compliance and enforcement context
Corporate changes can carry compliance baggage. Regulations effective January 17, 2025 increased USCIS authority to deny certain H-2B petitions where a predecessor or successor in interest committed serious labor law violations.
Even for employers focused on H-1B and I-140 filings, that enforcement direction shows how closely USCIS and DHS may examine predecessor/successor relationships and continuity of obligations.
Adjudication risk from inconsistent employer identity
USCIS officers look for consistency: who issues paychecks, who controls the work, where the work happens, and whether the petitioner matches the reality.
Conflicting names across paystubs, offer letters, LC/I-140 filings, and H-1B records can invite requests for evidence or denials.
4) Remedies and relief mechanisms for late filings
Remedies exist, but they are not automatic. Each one has a specific fit. Below is a plain-language overview; an interactive tool will follow for a structured comparison of these remedies and the circumstances where they apply.
Nunc pro tunc (NPT) late-filing request: NPT is a discretionary way USCIS may excuse a late filing in limited situations. It typically applies to late H-1B-related filings or changes/extensions in some cases.
Key proof for NPT includes extraordinary circumstances beyond the petitioner’s control, a demonstrated connection between the delay and those circumstances, evidence the worker remained a bona fide nonimmigrant without other status violations, and citation to concepts in 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).
Limitations: NPT is discretionary, fact-specific, and not a cure-all for long gaps in compliance.
AC21 portability (INA 204(j)): AC21 can apply when a Form I-485 has been pending 180 days or more and a beneficiary seeks to change jobs.
Requirements: the new role must be in the “same or similar” occupation and the applicant must otherwise remain eligible. AC21 can reduce reliance on SII for some adjustment applicants, including movement to a successor entity in some cases, but it is not universal.
USCIS deference framework in later filings: Subsequent petitions sometimes receive deference to prior approvals, but deference can be reduced or removed where earlier eligibility was not adequately demonstrated or a material change occurred.
Guidance dated October 20, 2023 notes that deference may drop where eligibility was not shown or where a material change occurred.
Refiling or amending with full SII record: When continuity can be documented, refiling or amending may be effective. The filing should include corporate transaction records, assumption documents, ability-to-pay evidence, and same-job evidence.
Limitations: Late labor certification timing can still block a new I-140 even where SII evidence is strong.
✅ If a corporate change occurs, confirm whether an amended petition is mandatory and whether AC21 portability applies.
How triage usually works: counsel and employers map the corporate change (asset vs. stock deal, FEIN/EIN impact, payroll and supervision), then decide which combination is needed: SII documentation, an amended I-129, an amended I-140 strategy where still possible, an NPT request, or AC21 portability steps for adjustment applicants.
5) Impact on affected individuals
Priority dates drive many life decisions. Losing one can mean years of extra waiting.
Priority date retention: A successful SII approach can preserve the original priority date tied to a PERM-based process. That matters most in long backlogs, where the date is often the only real progress marker.
Work authorization exposure: H-1B workers can face questions if the employing entity changed and the petition trail did not keep pace. Even where everyone acted in good faith, USCIS may look for a clean chain showing the right employer employed the worker at the right time.
Unclear employer identity can also complicate extensions, transfers, and EAD renewals tied to pending filings.
Travel and port-of-entry risk: Ports of entry run on documents and consistency. If a visa stamp, I-797 approval notice, and employment letter show mismatched employer names, an officer may ask extra questions.
Carrying a coherent packet often helps, especially during a transition period.
Communication during the transition: Employees usually learn about restructures late. Early confirmation of the post-close employer name, FEIN/EIN, worksite address, and who will sign immigration filings can prevent avoidable gaps.
6) Key dates and regulatory references to note
January is a common close month for deals. Immigration planning should not wait for the new org chart.
- May 18, 2021: USCIS Policy Manual language tying SII to filing “within the validity period of the permanent labor certification.”
- August 6, 2009: Neufeld Memorandum reinforcing the SII framework used with Matter of Dial Auto Repair Shop, Inc.
- 8 CFR 214.2(h)(2)(i)(E): The H-1B “material change” hook that can trigger an amended petition analysis after mergers, acquisitions, and employer identity shifts.
- January 17, 2025: Effective date tied to expanded H-2B denial authority related to predecessor/successor serious violations, increasing transition risk for affected employers.
- October 20, 2023: Deference-related guidance reminding petitioners that prior approvals may carry less weight after material changes.
7) Official sources and where to find them
USCIS’s Policy Manual is the primary interpretive reference for SII and employment-based adjudications. Use it to confirm how USCIS describes the SII test, what it expects in filings, and how it frames timing tied to labor certifications.
eCFR is the best place for binding regulatory text, including 8 CFR 214.2(h)(2)(i)(E) and late-filing discretion concepts used in NPT-style requests. Reading the regulation itself helps separate requirements from office practice.
USCIS Newsroom and alerts are useful for program changes and enforcement updates that can affect employer filings, including H-2B-related announcements. When reviewing any USCIS page, check the “last reviewed” or “updated” marker and compare it against recent alerts.
Interactive tools will be provided separately for: official guidance and criteria for SII, remedies and relief mechanisms for late filings, and official sources and where to find them. Those tools will present the structured citations, timing windows, and decision-flow information visually.
The core takeaway is timing. If your employer’s structure changes, confirm who the petitioner is and whether filings must happen before a clock runs out—especially the 180-day validity period tied to labor certifications.
This article provides general information about immigration policy and relief options and does not constitute legal advice. For individual circumstances, consult a qualified immigration attorney. Policies and regulations change; verify current rules on USCIS.gov and ECFR.gov.
