Facing H1B Dilemma: What Are My Legal Rights If I Don't Join the Sponsoring Company?

Hi, A US-based company filed my H1B and made me sign an agreement that if I fail to join them, then I have to pay a certain amount as damages. Now my H1B petition is approved; however, I haven't done the visa stamping. Meanwhile, I changed my mind and am planning to stay with my current employer and not join the company that filed my H1B. Additionally, I traveled to the US on an L1 visa from my current employer. Now, when I informed them of my intentions, they are threatening to withdraw my H1B and take some "drastic actions."

My Questions Are:

1. What legal actions can they take against me?
2. Do I really have to pay the amount mentioned in the agreement?
3. What legal rights do I have in this case?
4. Although the company that filed my H1B and offered me the job is US-based, my contract was with their Indian office. Can this contract be valid as I was never offered a position in India?

I would appreciate any answers to the above.

Thanks.

Maybe you may not like this suggestion. When you signed the Agreement, I hope you signed it willingly and, more importantly, because it suited your interests at the time. Based on that Agreement, the US company went ahead and filed for the H1-B. I am not sure if you are aware of the costs involved nowadays in the whole filing process—anywhere between US$3,000-5,000 per filing, including the attorney fees.

Now, just because it doesn't suit your current interests, if you want to drop out, who is to take the flak and who is to bear the costs of the whole process? If you want others to pay for YOUR actions, I am not sure if you think that's fair, but it definitely doesn't seem fair and reasonable to me—mind you, nothing with respect to the legal angle here.

Now to answer your questions:

1. What legal actions can they take against me?

Ans: They can take you to court. And going by the general standards of the timeframes of Indian courts, you know it can take years to get decided—either way. Whether you are ready or not to handle this diversion of your efforts, attention, and money (for the lawyer fees), when you should be focusing on your career, is up to you.

2. Do I really have to cough up the amount which was mentioned in the agreement?

Ans: It depends. If you want to settle this right now, it's better to pay up. If you want to give the legal way a shot, you can wait for now—but if you happen to lose the case, you will still need to pay up, maybe with the accumulated interest and costs. And if their advocate succeeds in arguing, the court may also grant penalties against you.

In these days of Social Networking, don't assume that the world wouldn't know—keep the worst-case scenario in mind (which is your employer knowing about it and possibly reacting adversely)—it's your call whether you want to take the chance.

3. What legal rights do I have in this case?

Ans: You can fight the case, more of 'when' they file it—rather than 'if'. Once it reaches the courts, it becomes sub-judice.

4. Although the company is US-based which did my H1B and offered me the job, however, my contract was with their Indian office. Can this contract be valid as I was never offered a position in India?

Ans: Your Agreement was with the Indian office, and you are a citizen and resident of India right now—so you are governed by the laws of India—NOT the USA. Also, I suggest reading the Agreement carefully. I am sure it would have been mentioned clearly about the purpose of the Agreement and that the US office will be filing for the H1-B.

Frankly, all I can say is: you are looking for ways to jump the gun—as simple as that. AND you want the company to bear the costs and face the consequences of YOUR actions. NOT FAIR. Ethics/propriety apart, I think it's also not in your long-term interest to drag this beyond a point.

Regards,
TS

Legal Formalities for H1B Visa Processing

I am Ruby, and I agree with your comments on CiteHR. I work for a US-based software company in Chennai as an HR professional. My employer in the US wants to process H1B visas for a few employees in India. I want to know what legal formalities we can undertake. My employer is not interested in collecting money from the employees. There is a risk involved if the candidate is not willing to travel to the US after the visa processing or may not report in the US. Please suggest if we should get an agreement from the employee; will it be effective? Please provide me with some suggestions. I would appreciate it if you could contact me or share your contact number to clarify the doubts quickly.

Thanks,

Ruby

[Phone Number Removed For Privacy Reasons]

I understand the situation—you do have a problem, and a tricky one at that. With regard to your comment: "My employer is not interested in collecting money from the employees—I fully agree with it." Neither would I recommend it, for such an action has its own consequences, some of them far-reaching from the organization's context.

Agreement Considerations

One way out could be, like you suggested, an Agreement. But it may not serve the purpose if it's just a bilateral agreement [between the employee & the company]. I think it ought to be a Tripartite Agreement—between the Company, Employee & someone closely related to him/her standing as some sort of a surety for the employee [with all the associated contact info]. If the employee is serious about going to the USA through your company in an "ETHICAL/TRANSPARENT way," then there shouldn't be any hesitation in signing such a document. Please be prepared to hear stories like "I don't have anyone to sign, my father doesn't want to sign," etc.—if you hear such stories, just move to the next employee in the line—telling this person that it's his/her problem.

Purpose of the Agreement

Please note that the main purpose of this agreement will not be enforcement, but avoidance/pre-emption of the situation—something like putting the 'fear of the law' to pre-empt a crime rather than 'the punishment' per se. If & when the employee thinks of jumping the deal, he/she would automatically be reminded of the one who has to face the flak back in India, especially since everyone knows that cases can drag for years in India. But the impression the individual needs to be given would obviously have to be: the company will not hesitate to go legal if needed.

USCIS Laws and Reporting

Coming to your remark: 'may not report in US'—I don't think this can happen now—with the USCIS laws becoming very stringent. It used to happen earlier, but not anymore—since the individual will be declared an 'illegal alien' & no other company can hire him/her—with the minimum number of pay-stubs also needed to make an H1-B transfer.

Equitable and Fair Agreement

Having said the above, I also think you need to pay attention—as the HR person—to having an equitable & fair Agreement. Quite a few companies have one-sided agreements in place, due to which the individuals feel they have been taken advantage of & jump the gun, if possible. Ensure you place some timeframe—till when the person has to work in the USA on your rolls. Usually, it's anywhere between 15-18 months. The bottom line for this aspect is: it has to be a WIN-WIN relationship, with provisions in place to tackle those who take advantage of this fair-play—whether it's the employee or the Company.

I hope this should help you handle the situation.

Regards,
TS

I am not sure of the legalities. I suggest checking with an advocate before going ahead—there could be both pros and cons.

Regards, TS