My company restructured — what happens to my H-1B employees?

Question 1

Do we have to file new H-1B petitions after a merger or acquisition?

Accepted Answer

Not always. Federal law says an amended H-1B petition is not required when a new company takes over the original employer's interests and obligations in a merger, acquisition or similar restructuring, and each H-1B job stays the same except for who the employer is. The new company must still formally accept the old company's Labor Condition Applications, the Department of Labor filings behind each H-1B petition. A change to the job itself, such as new duties or a new work location, can require a filing before it happens. If the buyer does not take on those obligations, as can happen when only some assets are bought, it generally must file new Labor Condition Applications and H-1B petitions before employing the workers.

Question 2

What kinds of changes would require an amended H-1B petition?

Accepted Answer

An employer must file an amended or new H-1B petition for any material change in the terms and conditions of employment. The regulations, as updated in January 2025, require that filing before the change takes place. Moving a worker to a location outside the area covered by the current Labor Condition Application counts as a material change. A move within that same area generally does not need a new petition if nothing else changes, although the Labor Condition Application notice must be posted at the new worksite by the day the worker starts there. The worker generally may not work under the changed terms until the amended petition is approved and in effect, unless the H-1B portability rules allow work to begin when it is filed.

Question 3

What does the new company need to do about the Labor Condition Applications?

Accepted Answer

Under Department of Labor rules, the new company does not have to file new Labor Condition Applications or petitions for the H-1B workers it takes over, even if its employer identification number is different, as long as it completes specific records. It must keep a list of the transferred H-1B workers. It must also add to the public access file (the records it must make available to anyone who asks) a document that lists each affected application and its certification date, describes its own actual wage system (how it sets pay for similar jobs), gives its employer identification number, and includes a sworn statement by an authorized official accepting all of the old company's obligations under those applications. Without that sworn statement, the new company may not employ the transferred workers unless it files new Labor Condition Applications and petitions. The old applications also cannot support new H-1B hires or extensions after the change, which need new filings.

Question 4

Does the $100,000 H-1B payment apply to petitions we file because of the restructuring?

Accepted Answer

A September 2025 presidential proclamation requires a $100,000 payment with certain new H-1B petitions, and a second proclamation in September 2026 extended it for another year. USCIS's published guidance says the payment does not apply to a petition for a worker already in the United States that asks for an amendment, a change of status or an extension of stay, when USCIS grants that request. A new employer's petition for an H-1B worker who is already here normally asks for an extension of stay, so it generally falls in that group. In June 2026 a federal court set aside USCIS's guidance carrying out the payment, and the Department of Homeland Security says it is complying with that order and still plans to collect the payment if the order is lifted. Because this is still being litigated, check USCIS's current position before any filing.

Question 5

Can we stop paying an H-1B employee while the restructuring is sorted out?

Accepted Answer

Generally, no. Under Department of Labor rules, if an H-1B employee has no work because of a business decision, such as a reorganization or a lack of assigned projects, the employer must still pay the required wage for the full-time or part-time schedule stated in its H-1B filings. That obligation ends with a bona fide termination of the employment. It also does not cover time off the employee asks for or cannot work for personal reasons, such as an illness, unless other laws or the employer's benefit plans require pay. Cutting pay below the required wage is not allowed, and reducing hours or changing the job may call for an amended petition before it happens.

Question 6

What do we owe H-1B employees we lay off?

Accepted Answer

An employer that ends an H-1B worker's employment generally must notify USCIS in writing so the petition is canceled, and is responsible for the reasonable cost of the worker's trip back to their last country of residence if it dismisses the worker before their authorized stay ends. The Department of Labor treats those steps as the best evidence of a bona fide (genuine and complete) termination, and until then the duty to pay the required wage can continue. Give the worker clear written notice as well. Layoffs can also affect later filings, because a September 2026 executive order directs the Departments of Labor, Homeland Security and State to take into account whether an H-1B employer had layoffs in the past year, or plans them, that negatively affect similarly situated workers in the United States. For green card cases, an employer that laid off workers in the same or a related occupation, in the same area, within the six months before filing a labor certification must notify and consider the potentially qualified United States workers it laid off.

Question 7

What happens to an H-1B employee's status after a layoff?

Accepted Answer

Under current regulations, an H-1B worker whose job ends is generally not considered out of status for up to 60 consecutive days, or until the end of their authorized stay if that comes first. The worker may not work during that time unless otherwise authorized. Within that window, a new employer can file an H-1B petition, and a worker who meets the requirements may start the new job when a genuine (nonfrivolous) petition is properly filed, or on its requested start date if that is later, without waiting for approval. Other options can include changing to another status or applying for a green card from inside the United States, depending on the person's situation. In September 2026 the Department of Homeland Security proposed eliminating this grace period, and the proposal was not final as of October 2026, so check the current rule before anyone relies on it.

Question 8

What happens to the green card cases we are sponsoring?

Accepted Answer

A new company that wants to continue a green card case started by the old employer generally has to show USCIS that it is a successor in interest. USCIS looks for three things: the job is the same one described in the labor certification, the transfer of ownership of the business, or of the unit where the job sits, is fully documented, and the successor proves every requirement, including the ability to pay the offered wage. The successor generally files a new or amended I-140 immigrant petition to rely on the old employer's case, but a simple legal name change with the same ownership and structure does not require one. An approved I-140 that is withdrawn, or whose employer closes, 180 days or more after approval or after the related green card application was filed generally stays approved, and the worker keeps the priority date that holds their place in line, though a new employer usually must still file its own petition. A worker whose green card application has been pending 180 days or more may instead be able to move the case to a new job in the same or a similar occupation.

Question 9

What should we tell our H-1B employees, and when?

Accepted Answer

Tell H-1B employees early and plainly which company will employ them and whether their duties, pay, hours or work location will change. Let them know whether any immigration filing is planned, and keep them working under their current terms until any required filing has been made and, where needed, approved. If a layoff is possible, give clear written notice and explain that the company will cover the reasonable cost of their return trip, because the time a worker has to act after a job ends is limited. Each employee's status depends on their own facts, so they may also want individual advice about their situation.