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 damage of certain amount.
Now my H1B petition is approved, however I haven't done the visa stamping. Meanwhile I changed my mind and planning to stay on with my present employer and would not join this company who did my H1B. Moreover, I traveled to US on L1 visa from my present employer.
Now when I let them know of my intentions, they are threatening to withdraw my H1b and take some "drastic actions".
My questions :
1. What legal actions can they take agianst me?
2. Do I really have to cough up the amount which was mentioned in the agreement?
3. What legal rights do I have in this case?
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.
Would appreciate any answer on the above.
Thanks.
From United States, San Francisco
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 damage of certain amount.
Now my H1B petition is approved, however I haven't done the visa stamping. Meanwhile I changed my mind and planning to stay on with my present employer and would not join this company who did my H1B. Moreover, I traveled to US on L1 visa from my present employer.
Now when I let them know of my intentions, they are threatening to withdraw my H1b and take some "drastic actions".
My questions :
1. What legal actions can they take agianst me?
2. Do I really have to cough up the amount which was mentioned in the agreement?
3. What legal rights do I have in this case?
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.
Would appreciate any answer on the above.
Thanks.
From United States, San Francisco
Hello 9923111,
Maybe you may not like this suggestion.
When you signed the Agreement, I hope you signed it willingly & more importantly, because it suited your then interests. Based on that Agreement, the US company went ahead & filed for the H1-B. I am not sure if you are aware of the costs involved now-a-days 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 & 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 & reasonable to me--mind you nothing w.r.t. the legal angle here.
Now to answer your questions:
1. What legal actions can they take agianst 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 & money [for the lawyer fees], when you should be focusing on your career, is upto 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, better to pay-up.
If you want to give the legal way a shot, you can wait for now--but if you happen to loose the case, you will still need to pay-up, maybe with the accumulated interest & costs.
And if their advocate succeeds to argue, the court may also grant penalties against you.
And 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 & 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 & you are a citizen & resident of India right now--so you are governed by the laws of India--NOT USA. Also, suggest read the Agreement carefully. I am sure it would have been mentioned clearly about the purpose of the Agreement & 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 & 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.
Rgds,
TS
From India, Hyderabad
1637Maybe you may not like this suggestion.
When you signed the Agreement, I hope you signed it willingly & more importantly, because it suited your then interests. Based on that Agreement, the US company went ahead & filed for the H1-B. I am not sure if you are aware of the costs involved now-a-days 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 & 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 & reasonable to me--mind you nothing w.r.t. the legal angle here.
Now to answer your questions:
1. What legal actions can they take agianst 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 & money [for the lawyer fees], when you should be focusing on your career, is upto 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, better to pay-up.
If you want to give the legal way a shot, you can wait for now--but if you happen to loose the case, you will still need to pay-up, maybe with the accumulated interest & costs.
And if their advocate succeeds to argue, the court may also grant penalties against you.
And 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 & 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 & you are a citizen & resident of India right now--so you are governed by the laws of India--NOT USA. Also, suggest read the Agreement carefully. I am sure it would have been mentioned clearly about the purpose of the Agreement & 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 & 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.
Rgds,
TS
From India, Hyderabad
Hi Satheesh,
I am Ruby, I agree to your comments on CiteHR. I am working for software company in Chennai which is US based as an HR. My employer in US wants to process H1b for few employees in India. I wanted to Know what are the legal formalities we can do. 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 US after the visa processing or may not report in US. Please suggest me if we want to get an agreement from the employee, will it work. Please help me out with some suggestion. I will be happy if you can contact me or give your contact number to clarify the doubts quickly.
Thanks
Ruby
044-42649238
From India, Madras
I am Ruby, I agree to your comments on CiteHR. I am working for software company in Chennai which is US based as an HR. My employer in US wants to process H1b for few employees in India. I wanted to Know what are the legal formalities we can do. 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 US after the visa processing or may not report in US. Please suggest me if we want to get an agreement from the employee, will it work. Please help me out with some suggestion. I will be happy if you can contact me or give your contact number to clarify the doubts quickly.
Thanks
Ruby
044-42649238
From India, Madras
Hello Ruby,
I understand the situation--you DO have a problem, and a tricky one at that.
W.r.t. 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 it's own consequences, some of them far-reaching from the organization's context.
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 USA thru your company in an ETHICAL/TRANSPARENT way, then there shouldn't/wouldn't be any hesitation in signing such a document. Pl 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.
Pl note that the main purpose of this agreement WILL NOT BE ENFORCEMENT, BUT AVOIDANCE / PRE-EPMTION 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.
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 a H1-B transfer.
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 USA on your rolls. Usually it's anywhere between 15-18 months. The bottomline 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.
Rgds,
TS
From India, Hyderabad
I understand the situation--you DO have a problem, and a tricky one at that.
W.r.t. 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 it's own consequences, some of them far-reaching from the organization's context.
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 USA thru your company in an ETHICAL/TRANSPARENT way, then there shouldn't/wouldn't be any hesitation in signing such a document. Pl 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.
Pl note that the main purpose of this agreement WILL NOT BE ENFORCEMENT, BUT AVOIDANCE / PRE-EPMTION 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.
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 a H1-B transfer.
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 USA on your rolls. Usually it's anywhere between 15-18 months. The bottomline 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.
Rgds,
TS
From India, Hyderabad
Hi Satheesh,
Thanks much for your reply. I have one more question. Can we write in an agreement that the candidate has taken a personal loan from us and if he quits the company before 2 years he has to pay us the loan amount and if completes 2years of working he doesn't have to pay us the same.
Thanks
Ruby
From India, Madras
Thanks much for your reply. I have one more question. Can we write in an agreement that the candidate has taken a personal loan from us and if he quits the company before 2 years he has to pay us the loan amount and if completes 2years of working he doesn't have to pay us the same.
Thanks
Ruby
From India, Madras
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