DOL OFLC, Round 10: Post-certification: Corporate Restructuring and Successor in Interest

Employment and Training Administration Office of Foreign Labor Certification Frequently Asked Questions H-2A Temporary Agricultural Foreign Labor Certification Program 2010 Final Rule, Round 10 January 2016 Post-certification Corporate Restructuring / Successor in Interest 1. Due to corporate restructuring or the sale of the business, a successor in interest will now be the employer of workers employed under an H-2A certification. Can the successor in interest still use the certification? How do I notify the Department of this change?

A successor in interest entity may use the certification issued, provided that it assumes all obligations, liabilities, and undertakings arising under the certification. The Department’s H-2A regulations expressly contemplate successorship by including a definition of “successor in interest” and, in fact, permit debarment of employers who are successors to a debarred employer. See 20 CFR 655.100(b) and .182(a). As a result, although the H-2A regulations do not expressly contain a process in which a certification may be assumed by a successor employer, the Office of Foreign Labor Certification (OFLC) has determined that such a process is a reasonable interpretation of the H-2A regulations cited above, and that such a model would prove useful to both employees and employers in situations involving corporate restructuring or sale of a business.

As indicated in the definition of “successor in interest” at .100(b), the following factors may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole: 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; (i) (ii) (iii) (iv) (v) (vi) whether the former management or owner retains a direct or indirect interest in the new enterprise; similarity in machinery, equipment, and production methods; (vii) (viii) similarity of products and services; and (ix) the ability of the predecessor to provide relief. 1 Before employing workers covered by the certification, a successor in interest entity should notify the Chicago National Processing Center (NPC) by submitting a sworn written statement that identifies the certification using the ETA case number; describes the business situation resulting in the change; provides the successor in interest’s name and contact information; and confirms the successor in interest’s assumption of all obligations, liabilities, and undertakings arising under the certification. Also, a copy of the sworn written statement submitted to the Chicago NPC should be added to the employer’s document retention file, consistent with the H-2A regulation’s record and documentation retention requirements described at .167. Important Note: The H-2A regulations do not provide a process for the Chicago NPC to determine whether a new entity is a “successor in interest” for purposes of using the H-2A certification.

Therefore, the Chicago NPC’s receipt of the sworn statement serves only to document the asserted successorship and the transition between employers using the certification. 2