Notice period? Sure!

[Srinivasan76]

I am on H1B, and considering leaving my employer to join another company. I dug out my current employment contract and it says "...shall provide 2 weeks' notice..." The employment contract was signed in India. How the heck am I supposed to provide 2 weeks' notice on a H1? They will revoke my visa immediately!

Is this enforceable in the US under US laws?

[Zodiac System]

Two weeks notice is industry standard.

[LeaveMessageH1B]

Alright, so "shall" in US legal term equates to "may" not must.

for the purpose of 2 week notice : Your contract is with company in India, it may or may not hold any grounds in US regardless of relationship (sister/parent/client/business affiliate etc.) they have with your US employer. (check applicability of contract global/local etc.)

Why: Because your visa sponsoring employer is entity registered in US (check you approval notice and petition) and they follow US regulation where 'all employment is at will, any party can leave at any time, without any notice- 2 weeks is just professional courtesy.'

On 2/9/2021 at 6:24 AM, Srinivasan76 said:

They will revoke my visa immediately!

You are correct, H1B it's employer's petition and they can fire you anytime and revoke the petition. 

On 2/9/2021 at 6:24 AM, Srinivasan76 said:

considering leaving my employer to join another company

You can leave current employer once at least you have receipt notice for transfer of petition, best is after approval. 

[rksingh]

You need to get your new employer to file your H1B (there is no way your old employer will know about this process/application unless someone tells them). Once your receipt notice for the H1B with new employer is received, you can then give a 2 week notice to your old employer and then start working for the new employer after the 2 weeks.

Just keep in mind that it is wiser for your new employer to file with premium processing: that way you can give your 2 week notice after approval of your new H1B and be safe from falling out of status.

In the US, employment is usually at will from both sides (unless an employment contract signed in US exists). It is unlikely that your employer can enforce a contract signed in India....but why burn bridges with them? Follow above procedure and give them their required 2 weeks notice.

[Srinivasan76]

On 2/10/2021 at 8:20 PM, rksingh said:

You need to get your new employer to file your H1B (there is no way your old employer will know about this process/application unless someone tells them). Once your receipt notice for the H1B with new employer is received, you can then give a 2 week notice to your old employer and then start working for the new employer after the 2 weeks.

Just keep in mind that it is wiser for your new employer to file with premium processing: that way you can give your 2 week notice after approval of your new H1B and be safe from falling out of status.

In the US, employment is usually at will from both sides (unless an employment contract signed in US exists). It is unlikely that your employer can enforce a contract signed in India....but why burn bridges with them? Follow above procedure and give them their required 2 weeks notice.

Thank you for your response. But how can I work for my old employer for 2 weeks AFTER my H1B has been successfully transferred to another employer through premium processing? My understanding: the moment the USCIS issues a receipt notice for a H1B transfer - not the APPROVAL notice, just the RECEIPT notice - the employee becomes eligible to work for the new employer, and cannot work any longer for the old/original employer. Please correct me if I am wrong.

[rksingh]

On 2/12/2021 at 3:10 PM, Srinivasan76 said:

Thank you for your response. But how can I work for my old employer for 2 weeks AFTER my H1B has been successfully transferred to another employer through premium processing? My understanding: the moment the USCIS issues a receipt notice for a H1B transfer - not the APPROVAL notice, just the RECEIPT notice - the employee becomes eligible to work for the new employer, and cannot work any longer for the old/original employer. Please correct me if I am wrong.

You can be approved for a new employer but do NOT have to start immediately. H1B is never "transferred". Your new employer will file a NEW H1B petition for you.....and that is why the old employer can never come to know that a new H1B petition has been filed on your behalf. And even after your new H1B approval you can still continue to work for your old employer.

And, Yes, you can start work with your new employer as soon as you receive a Receipt notice. Its just a little more risky than waiting for approval.

[Srinivasan76]

11 hours ago, rksingh said:

You can be approved for a new employer but do NOT have to start immediately. H1B is never "transferred". Your new employer will file a NEW H1B petition for you.....and that is why the old employer can never come to know that a new H1B petition has been filed on your behalf. And even after your new H1B approval you can still continue to work for your old employer.

And, Yes, you can start work with your new employer as soon as you receive a Receipt notice. Its just a little more risky than waiting for approval.

Thank you, that clarified my doubt. I sincerely appreciate your help!