H1 B Transfer under Contract period

[DECISION]

Hi,

I have a situation where I traveled to US on H1 B through an Indian company C1 which approved and allowed my travel only after I signed a contract which states that I cannot resign my Job in US as long as my deputation period(which is indefinite) is not completed and also have to report to my C1 company's office in India for 3 months to complete my resignation process. The contract also states that if I violate the contract by finding a new job in US with company C2 then I need to pay all the losses incurred by me to company C1 which includes my travel cost, business loss and knowledge loss costs incurred.

I would like to know whether:

1. Can I legally get a new job in C2 without any complications further during my stay in US.

2.Can I get all my Experience and Relieving letters from my current employer C1 rightfully and legally which will be of need during my further stay in US. If yes then kindly let me know how to proceed from the point where I get a job with new employer C2 who is ready to file my H1B transfer.

[JoeF]

First, an H1 can only be filed by a US company, not by an Indian company.

Second, a penalty for leaving an H1 job early is not allowed. What is allowed is asking for payment of liquidated damages. This gets lower over time, since the longer you work there, the more the company recoups their investment into you.

You may want to discuss your contract with a good labor lawyer and immigration lawyer

[metroguy]

There are no bonds in US. So you can freely join any company in US. Employers these days are scaring their employees by such bonds so that they wont join any other company and they work for low pay.. As a general courtesy, work for the current company for a year and then leave so that they dont have any problem in releasing you and also get your experience letter (which are required in your GC process). I have seen people joining another company with in a month or two. By doing this the client and the employer will be upset and they loose business and they create hurdles in your release.

[DECISION]

First, an H1 can only be filed by a US company, not by an Indian company.

Second, a penalty for leaving an H1 job early is not allowed. What is allowed is asking for payment of liquidated damages. This gets lower over time, since the longer you work there, the more the company recoups their investment into you.

You may want to discuss your contract with a good labor lawyer and immigration lawyer

Thankyou JoeF for your response. My H1 was filed by an Indian Based IT company who also have many offices in USA. This is a very common process across all major Indian IT companies where they process their respective associate's H1B visas within the allocated yearly H1 quota and send them to work in US calling it as a "long-term onsite deputation". As you mentioned about the payment of "Liquidated damages", which is exactly I am trying to understand now that even though I have worked quite a long period for the company and now at a moment when I want to quit the company, will it be legally right for the company to take an action against me stating that I caused a loss to the company ?

[DECISION]

There are no bonds in US. So you can freely join any company in US. Employers these days are scaring their employees by such bonds so that they wont join any other company and they work for low pay.. As a general courtesy, work for the current company for a year and then leave so that they dont have any problem in releasing you and also get your experience letter (which are required in your GC process). I have seen people joining another company with in a month or two. By doing this the client and the employer will be upset and they loose business and they create hurdles in your release.

Thankyou metroguy for your response. I appreciate your advice but I am now trying to understand whether my current Indian based company can still take create hurdles for my Experience letter during my release even after working for a considerable long period? Cant I ever have an ability to get my required employment related documents LEGALLY in USA ?

[JoeF]

Thankyou JoeF for your response. My H1 was filed by an Indian Based IT company who also have many offices in USA. This is a very common process across all major Indian IT companies where they process their respective associate's H1B visas within the allocated yearly H1 quota and send them to work in US calling it as a "long-term onsite deputation".

It is is their practice is irrelevant.

By law, only a US company can file an H1. So, in your case, a US office must have filed the H1, not the Indian company. The Indian office is completely out of this and has no legal standing whatsoever with respect to anything concerning the H1.

As you mentioned about the payment of "Liquidated damages", which is exactly I am trying to understand now that even though I have worked quite a long period for the company and now at a moment when I want to quit the company, will it be legally right for the company to take an action against me stating that I caused a loss to the company ?

The rules about liquidated damages are somewhat complex. I suggest you discuss your particular situation with a good immigration lawyer.