Employer asking for 1 year commitment for H1B visa fees

[student_visa123]

My employer just sent me an email today asking for a 1 year commitment in return for them paying the H1B visa fees. The 1 year commitment they say will begin from when the H1B will get approved. If I'm leave the company before that 1 year completion, then I will be asked to pay the visa + legal cost to the company.

I have not yet signed this document. I was also not told about any such commitment requirement when I was hired. This is also coming up at the last moment, so close to the visa application dates.

I could really really use some advice! What should I do?

 

 

[JoeF]

That's illegal.

Find a better employer.

 

[student_visa123]

But I can't leave this employer now, can I? It'll take me at least 2 weeks to interview and officially join a new company. And then the new company will have to file for my H1B really close to the deadline. Will any company be willing to do that?
I really don't want to miss the chance to apply for my H1B this year either!

I'm aware that an employee cannot be legally asked to pay the H1B fees. To be clear, my company hasn't asked me to pay for the H1B fees now. They've only asked me to pay for it IF I decide to leave the company within 1 year of my H1B approval. Now I'm not sure if that's legal or not.

Also what's worrying is that the legal team of my company has sent me this commitment letter. So I'm thinking they must have checked the legality of this too. 

[JoeF]

You would be way worse off if you join such a fraud employer. You would end up in lots more trouble than waiting for a year and finding a decent employer in the year.

The rule is in 20 CFR 655.731 (https://www.law.cornell.edu/cfr/text/20/655.731)

"(10) A deduction from or reduction in the payment of the required wage is not authorized (and is therefore prohibited) for the following purposes (i.e., paragraphs (c)(10) (i) and (ii)):

(i) A penalty paid by the H-1B nonimmigrant for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer.

(A) The employer is not permitted to require (directly or indirectly) that the nonimmigrant pay a penalty for ceasing employment with the employer prior to an agreed date. Therefore, the employer shall not make any deduction from or reduction in the payment of the required wage to collect such a penalty.

(B) The employer is permitted to receive bona fide liquidated damages from the H-1B nonimmigrant who ceases employment with the employer prior to an agreed date. However, the requirements of paragraph (c)(9)(iii) of this section must be fully satisfied, if such damages are to be received by the employer via deduction from or reduction in the payment of the required wage.

(C) The distinction between liquidated damages (which are permissible) and a penalty (which is prohibited) is to be made on the basis of the applicable State law. In general, the laws of the various States recognize that liquidated damages are amounts which are fixed or stipulated by the parties at the inception of the contract, and which are reasonable approximations or estimates of the anticipated or actual damage caused to one party by the other party's breach of the contract. On the other hand, the laws of the various States, in general, consider that penalties are amounts which (although fixed or stipulated in the contract by the parties) are not reasonable approximations or estimates of such damage. The laws of the various States, in general, require that the relation or circumstances of the parties, and the purpose(s) of the agreement, are to be taken into account, so that, for example, an agreement to a payment would be considered to be a prohibited penalty where it is the result of fraud or where it cloaks oppression. Furthermore, as a general matter, the sum stipulated must take into account whether the contract breach is total or partial (i.e., the percentage of the employment contract completed). (See, e.g., Vanderbilt University v. DiNardo, 174 F.3d 751 (6th Cir. 1999) (applying Tennessee law); Overholt Crop Insurance Service Co. v. Travis, 941 F.2d 1361 (8th Cir. 1991) (applying Minnesota and South Dakota law); BDO Seidman v. Hirshberg, 712 N.E.2d 1220 (N.Y. 1999); Guiliano v. Cleo, Inc., 995 S.W.2d 88 (Tenn. 1999); Wojtowicz v. Greeley Anesthesia Services, P.C., 961 P.2d 520 (Colo.Ct.App. 1998); see generally, Restatement (Second) Contracts § 356 (comment b); 22 Am.Jur.2d Damages §§ 683, 686, 690, 693, 703). In an enforcement proceeding under subpart I of this part, the Administrator shall determine, applying relevant State law (including consideration where appropriate to actions by the employer, if any, contributing to the early cessation, such as the employer's constructive discharge of the nonimmigrant or non-compliance with its obligations under the INA and its regulations) whether the payment in question constitutes liquidated damages or a penalty. (Note to paragraph (c)(10)(i)(C): The $500/$1,000 filing fee, if any, under section 214(c) of the INA can never be included in any liquidated damages received by the employer. See paragraph (c)(10)(ii), which follows.)"

Furthermore, the employer can deduct the H1 costs from their taxes. So, they are trying to double-dip.

And no, they don't seem that have that checked with any lawyer. A lawyer would have told them that it is illegal.

The employer is a fraud, plain and simple.

Stay away from such fraudulent employers, even if it means you won't get an H1 this year. Spend the year to find a better employer.

[JoeF]

Further, with such a request, they show that they are so bad that nobody wants to work for the company for a year. Yet another reason to avoid such frauds.