Pittsburgh Immigration Attorney Ellen Freeman's Article on 'Successor-In-Interest' Standard Published by Immigration Daily

An article written by attorney Ellen Freeman — counsel in the Immigration Section of Buchanan Ingersoll & Rooney's Pittsburgh office — was published in the October 8, 2009, edition of Immigration Daily. The article, titled "The USCIS Relaxes 'Successor-In-Interest' Standard," discussed the ever-changing administrative laws pertaining to immigration and, specifically, the "one handed down on August 6, 2009 in the form of the USCIS Memorandum by Donald Neufeld," which Freeman described as "a very welcome one."

In the article, Freeman begins by discussing the history of the concept of "successor-in-interest" and how it came to be. "Without formal rule-making, in 1995, legacy INS adopted a lower standard in its Adjudicator's Field Manual (AFM). The successor-in-interest had to assume substantially all, rather than all of the rights, duties, obligations and assets of the original employer. Corporate America and its immigration counsels breathed a sigh of relief when legacy INS relaxed the artificial 'all or nothing' standard," she wrote.

She went on to explain how the Neufeld Memorandum recently passed is similar to the USCIS Memorandum on Ability-to-Pay analysis. The new standard focuses on three factors, she explained, "(1) whether it is the same job; (2) whether the successor has established eligibility for the requested visa classification in all respects; and (3) whether the successor has adequately detailed the nature of the transfer of rights, obligations, and ownership of the prior entity.

She also noted, "If the petitioning employer 'can establish these three factors, it is possible to find a valid successor-in-interest relationship even in situations where a successor does not wholly assume a predecessor entity's rights, duties and obligations. Documenting 'the nature of the transfer of rights, obligations, and ownership of the prior entity,' the last prong of the new test, is a much more relaxed standard as compared to the previous proof of the assumption of all of the rights, duties, obligations, and assets of the original employer."  

According to Freeman, "Just as the seemingly-clear USCIS Memorandum articulating the three-pronged Ability-to-Pay test proved to be imperfect and often challenged in the AAO decisions, immigration practitioners should pause and ponder before concluding that the new 'successor-in-interest' test is clear."

Following an analysis of the three prongs of the Neufeld Memorandum, Freeman finished by saying, "In conclusion, the relaxed 'successor-in-interest' standard is more flexible and clear than the ones that were in place for the past decade. The assumption of essential rights and obligations of the predecessor are lesser than substantially all. It remains to be seen whether the Service will indeed review each corporate reorganization transaction in detail in determining whether the new test has been satisfied."