H1-B Employment & Bond

L

lonelyindian

New Member
Hi,

This is my situation.

I was employed by a NJ based consulting company last October in India, i.e. I passed the interview in India and my petition was filed. I got the visa stamped in Feb 04 and came to US in April after quiting my job in India.

I signed my employment agreement after I was offered the job. this was in India. When I came in US, I had to sign the same agreement once again. Everything was same except that the date was changed to the date on which I landed in US.

The agreement has a clause for working for 15 months from the starting date or pay $16000 for various expenses. Note that the starting date was originally Oct, 2003 (as signed in India) and then Apr 2004 (when signed here). Is this valid?

Due to meager pay I am planning to look for a better job and switch (I am 2.5 months with them). However I am not sure whether in that case they can legally ask me to pay for the $16000 amount.

The few things that I think are in favor of me are
1. They did not pay me for 3 weeks till I got my project (It was mentioned in the agreement that they will not pay me upto a month unless I am on a project before that. beyond that they will pay me even if I am on bench)
2. The employment agreement is for a yearly salary so I am assuming my monthly salary would be yearly salary/12 flat. However they are paying me on hourly basis which although adds up to me yearly salary at the end of one year but if I quit in between, I might get more or less depending upon the hrs I was billed for. E.g. if I work for 3 months and my yearly salary is X, I am expecting to get (X/12)*3. However I am getting (X/2080)*(total hrs in 3 months) where 2080 is total hrs in 1 yr assuming 40 hrs a week and 52 weeks a year. Can they legally pay me like this?
3. In my employment agreement, they mentioned that they will pay me for all my relocation costs of hotel & car rental when I move to a new client location for a period of 2 weeks. However when I presented my expenses I was not paid the full amount and they said that there is a cap. I disputed it and they agreed to pay me for this time but the cap holds good for future. They never mentioned this in written although I sent emails to them (They never respond to emails). Neither is this ammended in the agreement (which if they try I am not going to sign any ways)
4. The yearly rate on my LCA and that on my agreement are different (LCA rate is lower than agreement rate)

With this situation what is the legal validity of their claim for the bond amount if I decide to switch. I know for sure that they sue people if they abscond but have no idea what happens after that in any case. I am providing below the exact clause as in the agreement for better judgement

"In the event that the Employee does not commence employment with the employer for any reason after filing the Employee's H1 application, the Employee shall pay $1500 to the Employer to cover H1 processing costs. In the event that the Employee is terminated for cause(which includes but not limited to poor job performance) by the Employer or resigns volantarily within 15 months after commencement of employment, the Employee shall pay $16000 to the Employer as reimbursement and to cover recruiting, relocation, orientation and training expenses and shall also pay other debts owed to the employer. If the Employee fails to pay the above amounts in full within 15 days after written notice by the employer, the Employee shall also be obliged to pay all reasonable attorney's fee and costs of collection incurred by the Emploer pursuent to execution of a judgement or any other remedial measures that may be undertaken"

To my knowledge I am not supposed to pay for H1 filing, recruiting and relocation costs by law. As far as orientation and training involves there was none except a 1 day orientation and lunch on the day of joining. Also I don't think that I need to pay them if they terminate me for what ever reason.

In this situation
1. What is the legal validity of this clause?
2. What should I do if they pursue it when I leave. I plan to give a legal notice of 2 weeks for resignation when I leave

Any help will be much appreciated
 
Welcome to the US AND your Indian employer.

You are new, better get used to this kind of treatment.

If you still want to fight, consult a good Labor Attorney.
 
Well, I definitely would not tolerate this treatment. I am not really new to US and I have financial backing. However I do not want to get into legal complicacies unless provoked to. So I will try to settle it peacefully with them when I decide to leave, but at the same time I don't want to pay for something that I am legally not supposed to. So before even I confront them, I want to know whether they are legally correct or not.

Any suggestions/pointers will be much appreciated.
 
lonelyindian said:
Well, I definitely would not tolerate this treatment. I am not really new to US and I have financial backing. However I do not want to get into legal complicacies unless provoked to. So I will try to settle it peacefully with them when I decide to leave, but at the same time I don't want to pay for something that I am legally not supposed to. So before even I confront them, I want to know whether they are legally correct or not.

Any suggestions/pointers will be much appreciated.
Click to expand...

You are better off talking to an attorney specializing in employment and labor laws. In many state like CA such one sided contracts are not valid. Moreover if your employer has violated his side of the contract by not paying you properly, you have every right not to honor any of your obligations unless the contract addresses this issue specifically. That is where an attorney will be of great help.
The sooner you get out of this new type of slave labor the better.
 
They did not pay me for 3 weeks till I got my project (It was mentioned in the agreement that they will not pay me upto a month unless I am on a project before that. beyond that they will pay me even if I am on bench)
They have already violated the labor law wrt H-1B. They cannot put anything in the agreement clauses like these for any person they sponsor on H1-B. You can take them on only with this single issue. Get a labor lawyer and he will see to it that you get your entire pay and also the side effect of this is the employer will be black listed for future H1-B sponsorship. Get a new employer and transfer your H1-B to their company start the GC process ASAP.

HTH
 
lonelyindian said:
Hi,


1. They did not pay me for 3 weeks till I got my project (It was mentioned in the agreement that they will not pay me upto a month unless I am on a project before that. beyond that they will pay me even if I am on bench)
2. The employment agreement is for a yearly salary so I am assuming my monthly salary would be yearly salary/12 flat. However they are paying me on hourly basis which although adds up to me yearly salary at the end of one year but if I quit in between, I might get more or less depending upon the hrs I was billed for. E.g. if I work for 3 months and my yearly salary is X, I am expecting to get (X/12)*3. However I am getting (X/2080)*(total hrs in 3 months) where 2080 is total hrs in 1 yr assuming 40 hrs a week and 52 weeks a year. Can they legally pay me like this?

Yes. Any position can be designated either hourly or salaried. As an H1 beneficiary, you are only required to be a 'permanent' employee, which is not the same as salaried (permanent can be hourly too). If you're paid for actual hours worked and not subject to a cap, this will actually work in your favor.
.
.
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In this situation
1. What is the legal validity of this clause?
Firstly, all employment in the US is subject to 'termination at will' otherwise you would legally be a slave. There is no law that that says you have to pay one thing or the other (or not). The employer is required to pay certain things to the DOL/USCIS, etc at different stages of processing, but there is nothing in the law that prohibits them from recovering that cost from you, especially if you've signed such an agreement.
From your description, "They did not pay me for 3 weeks till I got my project", you hopefully mean that the first month of your remunerated employment started 3 weeks after you came to the US. I ask this because you imply elsewhere in your message that your pay frequency is monthly. So there too, you might not be wronged, if say you arrived here on the 9th of a month and didn't get paid until the 30th - you see what I'm saying? But you probably mean that in the situation described above, they didn't start your earning clock until the 1st of the following month. That's the only illegal thing I see your employer as having done, as per immigration law, which IMHO is different from labor law. While you can use that as a bargaining point should you need to argue with their legal counsel, I would be careful how I tread through this situation. As someone pointed out, consult a labor lawyer in the state that either your agreement with them lists as having jurisdiction in case of disputes (I would be very surprised if it didn't) or, where you are resident to see if they can identify an out for you. Otherwise, you might just find yourself liable for the 'bond' as well as legal costs.

Any help will be much appreciated
Click to expand...
 
wouldnt you read something before signing. this is typical problem with people wishing to come to usa. as soon as they land here then they will get flash in their mind that the salary is very meagre blah blah and try to start filing greencard from i140 using fraud labor (substitute labor)

I was employed by a NJ based consulting company last October in India, i.e. I passed the interview in India and my petition was filed. I got the visa stamped in Feb 04 and came to US in April after quiting my job in India.
passed the interview?!?!?!? does it have any real value in consulting business? like all other aliens your only qualification is that you need h1 visa to work which thereby they can dictate terms and abuse.

I signed my employment agreement after I was offered the job. this was in India. When I came in US, I had to sign the same agreement once again. Everything was same except that the date was changed to the date on which I landed in US.
yes and no. if the initial agreement has clause stating that you would need to sign "similar" agreement in this land then yes (also depends on state law and the actual wordings in the employment agreement).

The agreement has a clause for working for 15 months from the starting date or pay $16000 for various expenses. Note that the starting date was originally Oct, 2003 (as signed in India) and then Apr 2004 (when signed here). Is this valid?

Due to meager pay I am planning to look for a better job and switch (I am 2.5 months with them). However I am not sure whether in that case they can legally ask me to pay for the $16000 amount.
dont claim this now. you know you are going to get meager pay if you would agree to their terms. then why change your view now. you are morally at fault.

The few things that I think are in favor of me are
1. They did not pay me for 3 weeks till I got my project (It was mentioned in the agreement that they will not pay me upto a month unless I am on a project before that. beyond that they will pay me even if I am on bench)
this is h1/labor violation. you are supposed to be paid from the day you land here depending on your agreements, state laws and to be more specific you should be paid same or more as stated in your labor. if you were not paid for the first 3 weeks then your employer violated h1 labor law which will debar them for 1 year from any future h1 or greencard labor or petitions along with some nominal fine.

2. The employment agreement is for a yearly salary so I am assuming my monthly salary would be yearly salary/12 flat. However they are paying me on hourly basis which although adds up to me yearly salary at the end of one year but if I quit in between, I might get more or less depending upon the hrs I was billed for. E.g. if I work for 3 months and my yearly salary is X, I am expecting to get (X/12)*3. However I am getting (X/2080)*(total hrs in 3 months) where 2080 is total hrs in 1 yr assuming 40 hrs a week and 52 weeks a year. Can they legally pay me like this?
perfectly valid

3. In my employment agreement, they mentioned that they will pay me for all my relocation costs of hotel & car rental when I move to a new client location for a period of 2 weeks. However when I presented my expenses I was not paid the full amount and they said that there is a cap. I disputed it and they agreed to pay me for this time but the cap holds good for future. They never mentioned this in written although I sent emails to them (They never respond to emails). Neither is this ammended in the agreement (which if they try I am not going to sign any ways)
this is not illegal but breach of employment contract between you both. this will entitle you to break the 15 months contract without any obligations. you have the right to quit as your employer is the first one to break the terms. but you should have enough proof to prove.

4. The yearly rate on my LCA and that on my agreement are different (LCA rate is lower than agreement rate)
this is h1 labor law violation. if your employer failed to match atleast the equivalent of lca rate "even after you asked for" then its their violation and you have the right to quit and report to dol.

With this situation what is the legal validity of their claim for the bond amount if I decide to switch.
bond is not valid in usa. it depends on how well they coin the wordings. if the contract says anything like penalty etc then its completely unenforceable. if your employer harrass you then complain to dol, uscis and if required to your local police if they frequently call you over the phone.

I know for sure that they sue people if they abscond but have no idea what happens after that in any case.
anybody can sue anybody for any reason or just for fun. all depends on the judge to give the verdict.

I am providing below the exact clause as in the agreement for better judgement

"In the event that the Employee does not commence employment with the employer for any reason after filing the Employee's H1 application, the Employee shall pay $1500 to the Employer to cover H1 processing costs. In the event that the Employee is terminated for cause(which includes but not limited to poor job performance) by the Employer or resigns volantarily within 15 months after commencement of employment, the Employee shall pay $16000 to the Employer as reimbursement and to cover recruiting, relocation, orientation and training expenses and shall also pay other debts owed to the employer. If the Employee fails to pay the above amounts in full within 15 days after written notice by the employer, the Employee shall also be obliged to pay all reasonable attorney's fee and costs of collection incurred by the Emploer pursuent to execution of a judgement or any other remedial measures that may be undertaken"

this agreement is NOT enforceable even if you have signed (it doesnt mean that your employer will not sue you.)
reason:
1. they CANNOT ask for $1500 for h1 processing fee
2. they cannot force you to pay $16k due to poor job performance. it is YOUR employer RESPONSIBLITY to check and validate your skills prior joining. they CANNOT enforce this clause at all. i came across similar case where the employer even claimed that the employee provided false resume but the court ruled that its employers mistake to validate the candiate before employing them and closed the case. if possible i will try to provide the case details later.

To my knowledge I am not supposed to pay for H1 filing, recruiting and relocation costs by law. As far as orientation and training involves there was none except a 1 day orientation and lunch on the day of joining. Also I don't think that I need to pay them if they terminate me for what ever reason.

In this situation
1. What is the legal validity of this clause? you have to use your claims (1,3,4) to fight back.
2. What should I do if they pursue it when I leave. I plan to give a legal notice of 2 weeks for resignation when I leave


from now on dont ever talk to them over the phone.
document everything
communicate ONLY in email.
notify your employer IN EMAIL that they are supposed to give wages for the 3 week period and correct the violation you mentioned (3 & 4). also notify that you will be forced to resign if they dont clear all your dues in 2 weeks and you will be filing complain to dol, uscis, usdoj and consulates.
howmuch every they try hard DO NOT EVER communicate in phone with them any more in your life.

PM me if you need any help. try to research more about your employer to use against them in the court.

dont worry about anything. these fools just try to scare you people. in realty they cannot do anything.

its better you consult good law firm practicing BOTH immigration and employement labor law in the state where you live &/or your company headquarter (ceo permanent residence)

you may try to check in path2usa.com (in employer/company experiences sections) if there are any other victims from your employer or to know about any fraud employers (bodyshoppers).



Any help will be much appreciated
 
Hi everybody,

thanks a lot for all the valuable inputs you have provided. I know I have been foolish in certain aspects, but that's how I'll learn. Till now I have been working with companies who have been extremely law abiding and I never even had a feeling of being frauded with them. Expected the same when I was "interviewed" by this company in India but once I landed here those expectations were shattered.

Not that I am depressed or anything, but I want to teach them a lesson for being unlawful and victimizing unaware people.
 
saigc,

Your posts are real good - I like reading it times and again. It is indeed a complete answer(I miss it many times so I appreciate it much more - wish I could write as complete as you do.) - nice post.

One point which I will bring attention to - if you do not have SSN - sometimes companies do not pay you and most of the immigration lawyer state that this is valid - which is wrong. They need to pay you even without SSN - search IRS' site for same(I don't remember the document but it is related to tax filing for employers). Company has to give attestetion about the fact that SSN has been applied. If you are planning to take them to court - get a lawyer who is conversant with criminal and labor laws.

Search the portal on how to file complaint against employer with USCIS and Labor Dept(lots of material on latter one). You will have upper hand in government depts if you have proof and you will be shielded if you ask for anonimity. Court will be a different game altogether.

Finally saigc - thanks for another good post.
 
its quite sad when companies treat you like that. however dont get disheartened. i was in the same boat too. i joined my new company and they have proved to be good. they have even filed for my GC and i am hopefully awaiting it to come soon.
focus on your future steps. these days shall pass too. wish you good luck. help one another.
 
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