The latest spate of merger deals is another promising harbinger of better economic times.1 They may also illustrate economist Joseph Schumpeter’s principle of “creative destruction” in action.2 A well-intentioned immigration agency’s recent effort to modernize its views on the immigration consequences of business combinations may end up leading to its own form of destruction, although of questionable creativity, by posing new and unexpected obstacles for acquirers and M&A lawyers in the years ahead.
On Aug. 6, 2009, the U.S. Citizenship and Immigration Services (USCIS) amended its instructions to Immigration Service Officers (ISOs) on how to decide whether foreign workers sponsored by the acquired entity in a merger, acquisition or other form of business restructuring may keep their place in the immigrant visa queue.3 If these foreign workers are required to begin again at the end of the line with a new request for employment-based green-card sponsorship by the acquiring enterprise, it could delay the green card by years, especially distressing in those cases where they may have already waited years to become permanent residents (and thereby move ahead on the path to U.S. citizenship).
