Hi all
My situation:
I am a software engineer & have come to the USA recently about 7 months back on a H1 visa from India. My offer letter had the following two clauses:
- If I were to voluntarily resign before one year of reaching here, then I agree to pay back all relocation costs incurred (no specific heads mentioned here - only "relocation costs"), if necessary, via deductions from my final earnings and unused vacation earnings.
- If I were to voluntarily resign before one year of "the company having rendered the immigration assistance", then I agree to pay back "all immigration assistance expenditures (including, but not limited to, legal fees, government fees, related travel costs)", if necessary, via deductions from my final earni.....
There were no specific dollar amounts mentioned for these costs. Just the above lines, which I feel is some legal jargon, open to interpretation.
Now, when I am resigning (of course within the first year of coming here), the company is asking me to pay back these expenses including
-- H1 filing fees (attorney + H1 fees)
-- air ticket fare
-- initial guest house accomodation
This amount is close to $6000.
Also to note, the "prevailing wage" mentioned on my LCA application is greater than what the employer is paying me. Though the difference is not too huge, but nevertheless, there is a difference. He is not paying me the minimum prevailing wage as required by DOL.
I had signed this offer letter when I was in India, and had faxed them a copy.
On this DOL website here
http://www.dol.gov/compliance/guide/h1b.htm#EmplRights, I found this:
"Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract".
Now my questions:
- Am I legally bound to pay all these costs back?
- From the DOL website, it clearly looks like I am not legally bound to do so, unless these costs can come under "Liquidated damages". Could somebody clarify whether these costs come under liquidated damages? I am in the state of California.
- The DOL website refers to a "penalty" being levied on the employee for leaving. Can these heads (H1 fees, airfare, etc.) be classified as a penalty?
- I read elsewhere (http://www.lectlaw.com/def/l045.htm) that liquidated damages are a "pre-decided" fixed amount of money mentioned in the contract. My offer letter does not mention a fixed figure. So I dont feel these classify as "liquidated damages". Is my interpretation correct?
Kindly reply urgently.
My situation:
I am a software engineer & have come to the USA recently about 7 months back on a H1 visa from India. My offer letter had the following two clauses:
- If I were to voluntarily resign before one year of reaching here, then I agree to pay back all relocation costs incurred (no specific heads mentioned here - only "relocation costs"), if necessary, via deductions from my final earnings and unused vacation earnings.
- If I were to voluntarily resign before one year of "the company having rendered the immigration assistance", then I agree to pay back "all immigration assistance expenditures (including, but not limited to, legal fees, government fees, related travel costs)", if necessary, via deductions from my final earni.....
There were no specific dollar amounts mentioned for these costs. Just the above lines, which I feel is some legal jargon, open to interpretation.
Now, when I am resigning (of course within the first year of coming here), the company is asking me to pay back these expenses including
-- H1 filing fees (attorney + H1 fees)
-- air ticket fare
-- initial guest house accomodation
This amount is close to $6000.
Also to note, the "prevailing wage" mentioned on my LCA application is greater than what the employer is paying me. Though the difference is not too huge, but nevertheless, there is a difference. He is not paying me the minimum prevailing wage as required by DOL.
I had signed this offer letter when I was in India, and had faxed them a copy.
On this DOL website here
http://www.dol.gov/compliance/guide/h1b.htm#EmplRights, I found this:
"Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract".
Now my questions:
- Am I legally bound to pay all these costs back?
- From the DOL website, it clearly looks like I am not legally bound to do so, unless these costs can come under "Liquidated damages". Could somebody clarify whether these costs come under liquidated damages? I am in the state of California.
- The DOL website refers to a "penalty" being levied on the employee for leaving. Can these heads (H1 fees, airfare, etc.) be classified as a penalty?
- I read elsewhere (http://www.lectlaw.com/def/l045.htm) that liquidated damages are a "pre-decided" fixed amount of money mentioned in the contract. My offer letter does not mention a fixed figure. So I dont feel these classify as "liquidated damages". Is my interpretation correct?
Kindly reply urgently.