California companies engaged in agriculture may be interested in a release by the U.S. Department of Labor’s Office of Foreign Labor Certification regarding the sale or restructuring of a business with H-2A employees. After a successor has become the employer of H-2A workers, it may use the existing certification as long as all undertakings and liabilities are upheld. There is no specific process to adopt a certification, but it is clear that the successor may use any certification that already exists.
Before employing H-2A workers after a change in employers, the appropriate National Processing Center must be notified. The notification process involves submitting a sworn statement with the Employment and Training Administration certification number, the circumstances surrounding the transfer of responsibility, contact information for the successor, and confirmation that the successor will adopt any obligations and liabilities from the certification. The successor must also keep a copy of the submission.
There are various factors that determine whether a successor in interest transfer has occurred, including continuity of business options, use of the same facilities and the use of the same work force. The successor must also maintain similar jobs and working conditions as well as similar supervisory employees. Other factors include whether the former owner retains an interest in the new business, the similarity of the machine and production techniques used in the business, the nature of the products and services offered and the ability of the previous employer to provide relief.
Transferring interests from one employer to another is a complicated matter with many technical considerations. An immigration and naturalization law attorney can often help provide clarity on the nature of certifications and H-2A employees. A lawyer may also provide guidance when dealing with other aspects of employment-based immigration.
