Want to transfer H1B employer_Likely to know what problems would come with present employer in future.

[Siva.akula]

Hi,

This is regarding my wife's H1B transfer to a new employer.

Actually my wife have enough concerns and problems with her current employer (Say it as 'A'), so want to transfer her H1 to another employer (Say it as 'B'). Currently she is on project and has 3 pay stubs (as of now) and more over we already spoke with another employer and he agreed for transfer and he is likely to do Premium Processing too.

As far as we know we didn't sign any document (for employer A) stating that we'll be working for him for 1month/XMonths/1year (no time period) from the time of employment and also there is no document stating and signed that we need to work for 2 weeks/1 month/Xmonths after giving the Last Day notice to him. (But we are ready to work for him for 2 weeks or 1 month - just in case if he asks). Working for employer 'A' since Nov-2012.

Our concern now is, what problems would arouse in case if we move from employer A to employer B. I mean what can employer A, can do, just in case if we sign any document saying that we need to work for him .... say 1 year .... but we terminated before that 1 year period.

Note: The employer is located at New York (state and city).

Answers from seniors like JoeF or someone would be really helpful.

Thanks

Siva.

[t75]

Your WIFE needs to speak with an attorney with all of her documents. She also needs to take responsibility for her career and post her own questions. You are not involved in this process. (Boy, I wonder if her employer knows how helpless she is that "we" have to do everything that "she" should be doing on her own. Do her a big favor and tell her this is her problem to take care of; support her but let her do the work solving the problem or she will be a failure in the US work environment since she is expected to be a competent professional and not dependent on her husband to do her work for her.)

[JoeF]

Employment in the US is at will, so people can leave at any time (or get laid off at any time.) A 2-week notice is essentially just a courtesy common in the US when quitting a job. But during the dot-com boom in the late 1990ies, it was not unusual for people to go to work for one employer in the morning, quit at lunch time, and start working for another employer, often across the street, in the afternoon...

For people on H1, it is not allowed for the employer to ask for a penalty to quit a job early, even if the person signed a document. What the employer can ask for is what is called "liquidated damages", i.e., they invested money in the employee, e.g., for training, and they may get that money back, although less and less over time since the person working for the employer results in the employer getting a return on his investment.

This is laid out in 20 CFR 655.731. http://www.gpo.gov/fdsys/pkg/CFR-2008-title20-vol3/xml/CFR-2008-title20-vol3-sec655-731.xml

(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 ©(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.

© 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).

[wiweq]

As most of the jobs in USA are at will, there is no problem in leaving an employer. The only future problem what I see is that this employer may deny to give you "Employer Verification Letter (EVL)" when you will go for GC. By law they are not required to give you EVL. But by the same law you are required to show the EVL to get the GC done. While filing Green Card, EVL (generally) is the only way to validate your experience. Members correct me if I am wrong.

[Siva.akula]

Thanks a lot JoeF and Wiweg