Desi Employer holding pay for taking Full Time with Client.

[matchris]

Hi,

I am on H1b visa with a company A and working for Client Company D through middle layers( Vendors) B and (Prime Vendor)C. The Client D offered me Full Time after working for them alomost 2 years and Vendor C is not having any issues with me going to Client D as Full Time.

But My employer A is asking me pay penalty saying I have breached Non solicitation and Non Compete agreement between Vendor B and my Consulting company A and for that he was holding my 2 months of paycheck saying he will keep that amount for breaching contract. In anyway he can sue me or file a lawsuit on me, As I already took the Full Time offer. If I go legal with any lawyer will that be helpful in getting my salary and avoid legal issues from my consulting company employer using the non compete and Non solicatation Clause.

I have paid all my H1B visa fees and Lawyer Fees and even marketing fees for more than 1 year.Whats hurting more is my 2 months of salary I cannot simply leave that as they are my hard earned money.

and I want to understand how strong they will be using the agreement between middle vendor and my employer if I go leagal for my pending payments. So that I will be bit relief as I am going through lot of pressure becuase my employer is threating that he will go for legal with his lawyer.

Adding to this my client is in Georgia and my employer in NY based.

thanks in advance for the reply.

[pontevecchio]

Why not talk to a Labor Lawyer in the relevant state?

[JoeF]

An employer is never allowed to hold back pay due to you.

File a complaint with your state's department of labor, and also with the federal DOL on form WH4.

[0407]

These contracts don't hold in a court of law ( in general )

See this thread to know how hard DOL hammers the employers in these cases

[0407]

go legal, you have to stand against him. When you send him attorney letter he will faint.

Claim your H1B fees + lawyer fees + pending salary. Tell him in clear words

that you will file DOL complaint

[t75]

You admit that you bought your H1B.

Have your contract read by an attorney. Some are valid. The employer typically has to pay your former employer which might cost you the new job (as well as the old) if you did not advise him of your non-compete when you received an offer.

The attorney can take actions to recover your money.

You have "unclean hands" given that you illegally paid your visa fees that could only be paid by the employer (some may be paid by the future employee like attorney fees). It was a really foolish thing to so especially since forums have been warning about the problems of doing so for years.

[rahul412]

But My employer A is asking me pay penalty saying I have breached Non solicitation and Non Compete agreement between Vendor B and my Consulting company A and for that he was holding my 2 months of paycheck saying he will keep that amount for breaching contract. In anyway he can sue me or file a lawsuit on me, As I already took the Full Time offer. If I go legal with any lawyer will that be helpful in getting my salary and avoid legal issues from my consulting company employer using the non compete and Non solicatation Clause.

Well, if you have signed any agreement which states like that, then you can't do anything. But its always better to contact attorney before you take any action.

I have paid all my H1B visa fees and Lawyer Fees and even marketing fees for more than 1 year.Whats hurting more is my 2 months of salary I cannot simply leave that as they are my hard earned money.

So, here is the actual problem. Paying H1 fee is illegal by employee is illegal. You should have resigned from that FRAUD employer when he asked you for H1 fee.

Unless and until people like you are in the market these kind of FRAUD employers are always safe.

Consult a good attorney ASAP.

[0407]

@rahul412, how would one know paying H1B fees is illegal? "Reputed" Indian companies for years make you

sign bond in India before sending you on H1B. They take sums such as 2 lac as "security deposit". This is

nothing but H1B fees.

I agree, employees need to be more aware. But I am sure that burden of not taking money from

employees will be on employer as far as DOL is concerned.

[chakrakr]

@rahul412, how would one know paying H1B fees is illegal? "Reputed" Indian companies for years make you

sign bond in India before sending you on H1B. They take sums such as 2 lac as "security deposit". This is

nothing but H1B fees.

I agree, employees need to be more aware. But I am sure that burden of not taking money from

employees will be on employer as far as DOL is concerned.

I am yet to hear of a "reputed" company which takes security deposit. Yes, they make you sign a Liquidated Damages agreement and such agreements are valid in US. Remember , it is not a Bond, it is a Liquidated Damages agreement (and it normally does not include any clause for H1 fee). If you do not want to sign the agreement , no one can force you to sign it.

Do you think an H1 aspirant does not even know how to google and find out the basic law ? And assuming he or she did not know, as I understand now VO hand over a H1 rights document during Visa interview. If the person has been in US on F1 and did a COS , shame on him that his US education + OPT could not get him a decent employer.

BTW, "Non solicitation and Non Compete agreement" are valid in most states . That is what you sign even with soem of the most reputed employers.

[rahul412]

@rahul412, how would one know paying H1B fees is illegal? "Reputed" Indian companies for years make you

sign bond in India before sending you on H1B. They take sums such as 2 lac as "security deposit". This is

nothing but H1B fees.

I agree with you here. But do you know that during the interview VO will give you a piece of paper about your rights and responsibilities?

And that's the reason why Grassley is giving hard time to these "Reputed" companies.

[0407]

Hey chakrakr,

I was under the impression that no GC fees or H1B fees can be recovered from the employee. When I left my last job before completing

certain time with the employer, they recovered H1B Attorney fees, premium filing fees and education evaluation fees and even fedEx charges.

During this course I figured that, all fees starting from I-140 could be recovered.

Further, during my job hunt, I came across a company, a well reputed start up ( - a product company , set for IPO or major acquistion)

asking me to bear 1/2 of H1B fees, under the agreement that they will reimburse it after six months. Turns out that is legal too as they

are reimbursing. They sent me an email coping their attorney.

So law has lot of grey areas which I am sure an H1B aspirant can't be well versed with.

[chakrakr]

These contracts don't hold in a court of law ( in general )

See this thread to know how hard DOL hammers the employers in these cases

http://forum.murthy....omplaint-filed/

Entirely different. Employer cannot hold the pay for any reason whatsoever. But if employee has signed a legit non compete agreement, employer can definitely sure the employee

[chakrakr]

Hey chakrakr,

I was under the impression that no GC fees or H1B fees can be recovered from the employee. When I left my last job before completing

certain time with the employer, they recovered H1B Attorney fees, premium filing fees and education evaluation fees and even fedEx charges.

During this course I figured that, all fees starting from I-140 could be recovered.

Further, during my job hunt, I came across a company, a well reputed start up ( - a product company , set for IPO or major acquistion)

asking me to bear 1/2 of H1B fees, under the agreement that they will reimburse it after six months. Turns out that is legal too as they

are reimbursing. They sent me an email coping their attorney.

So law has lot of grey areas which I am sure an H1B aspirant can't be well versed with.

There is no Grey area.

Some fees of H1 (like Attorney fee) Can be paid by Employee Provided it is disclosed BEFORE H1 is filed AND recovering such fee does not depress the salary below Prevailing Wage. Google and you will find everything.

For GC, PERM must be paid by Employer , rest (140 + 485) Can be paid by Employee or Employer. Again NOTHING grey.

Some of the H1 fee (like Fraud Detection, Filing fee) can NEVER be recovered from Employee , not even if it is reimbursed later. If your "reputed" employer has asked for that, report to DOL. DOL will be more than happy to get that info.

BTW, we are yet to know which "reputed" Indian company takes 2 lac Security Deposit .

[0407]

Entirely different. Employer cannot hold the pay for any reason whatsoever. But if employee has signed a legit non compete agreement, employer can definitely sure the employee

I am sure none of us are trained in law here. However, I have personal experience where in employer

filed a law suit with similar employment clauses. All that had to be done was find a lawyer, file a replay.

None of these clauses hold in a court of law. Court awarded the back wages, fees taken for H1B, and the

cost of hiring attorney.

[0407]

There is no Grey area.

Some fees of H1 (like Attorney fee) Can be paid by Employee Provided it is disclosed BEFORE H1 is filed AND recovering such fee does not depress the salary below Prevailing Wage. Google and you will find everything.

For GC, PERM must be paid by Employer , rest (140 + 485) Can be paid by Employee or Employer. Again NOTHING grey.

Some of the H1 fee (like Fraud Detection, Filing fee) can NEVER be recovered from Employee , not even if it is reimbursed later. If your "reputed" employer has asked for that, report to DOL. DOL will be more than happy to get that info.

BTW, we are yet to know which "reputed" Indian company takes 2 lac Security Deposit .

I need not google for any of this. I have had first hand experience and know the letter of the law.

From the way i read it DOL manual is just saying "fees can't be recovered". It is mum on taking

the fess and then reimbursing it. My guess is that this is what ******* consultants play by - "Letter of

the law " rather than "spirit of the law"

regarding reputed firm - it is one or more of "Big 3" services companies In India. Murthy will XXX

the company name anyway

[chakrakr]

I am sure none of us are trained in law here. However, I have personal experience where in employer

filed a law suit with similar employment clauses. All that had to be done was find a lawyer, file a replay.

None of these clauses hold in a court of law. Court awarded the back wages, fees taken for H1B, and the

cost of hiring attorney.

Again, Non solicitation and Non Compete agreement is not only for H1 employees. It is a general employment agreement enforced to all employees in many organizations and the agreement is valid. Google for non-compete agreement. You are mixign two things -- Holdong the wage of an H! employee for any reason whatsoever is illegal but that does not mean Employer cannot sue the Employee for violating non-compete agreeement .

Courtesy Joef :) , I know non-compete is not enforceable in CA but it is valid in most states. Do not misguide people.

[0407]

@rahul1412

I think the document gives at the time of stamping is same as H1B rights card that one can down load

on DOL website. Again, it just says deduction is illegal. It is mum on taking the fees and then reimbursing it.

I personally feel, all ****** consultants need to be weeded out. These are they guys that are preventing

better qualified from reaching US. These guys ( including Big 3 in India) file H1B without any immediate

need ( and thus eat up quota). Big 3 send the guys when they have actual project, make them sign all kind

of bonds. ********* shops start hunting for project once you have H1B, try to stop you from visiting India

( to avoid stamping).

But this can just be me. There might be others who feel ***** shops play an equal role in the economy

[chakrakr]

I need not google for any of this. I have had first hand experience

Hmmm... so if you are mugged by someone , you will say mugging is legal because you have "first hand experience" :)

and know the letter of the law.

From the way i read it DOL manual is just saying "fees can't be recovered". It is mum on taking

the fess and then reimbursing it. My guess is that this is what **** consultants play by - "Letter of

the law " rather than "spirit of the law"

Here is the law . The Letter and Spirit both prohibit certain types of fees. A Reimbursement Agreement does not hold water because it basically says that you will be required to Pay if you leave withing X months (Note clause 1 below)

http://www.dol.gov/w...62/whdfs62H.htm

An H-1B worker, whether through payroll deduction or otherwise, can never be required to pay the following:

1.A penalty (as defined by state law) for the worker’s failure to complete the full employment period (INA § 212(n)(2)©(vi)(I));

2.Any part of the statutory training and processing fee imposed by the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) (INA § 212(n)(2)©(vi)(II));

3.Any part of the statutory $500 fraud protection and detection fee imposed by USCIS (INA § 214©(12)(A)); and/or

4.Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate (20 C.F.R. § 655.731©(9)), including:

· Any expenses, including attorney fees, directly related to the filing of the Labor Condition Application (Form ETA 9035 and/or ETA 9035E) (20 C.F.R. § 655.731©(9)(ii));

· Any expenses, including attorney fees and the premium processing fee (INA § 286(u)) directly related to the filing of the Petition for Nonimmigrant Worker (Form I-129/129W) (20 C.F.R. § 655.731©(9)(ii) and (iii)©);

regarding reputed firm - it is one or more of "Big 3" services companies In India. Murthy will XXX

the company name anyway

I have worked for a long time for one of the big 3 (starting with T ) and they DO NOT ask for any security deposit . You do need to sign an agreement though. I have friends and relatives working for other three bigs (C, I and W) and those do not need any security deposit either. You probably heard some rumor

[chakrakr]

Further to our discussion, see this . While Employer cannot recover H1 costs, Employer can DEFINITELY have a Liquidated Damages Agreement (also Non-Compete -- if you work for a regular American company, you will know what it is)

http://www.dol.gov/compliance/guide/h1b.htm

"Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract."

[chakrakr]

Further, during my job hunt, I came across a company, a well reputed start up ( - a product company , set for IPO or major acquistion)

asking me to bear 1/2 of H1B fees, under the agreement that they will reimburse it after six months. Turns out that is legal too as they

are reimbursing. They sent me an email coping their attorney.

And what happens if you quit before 6 months ? Will they still reimburse ? No. That means they are imposing a penalty for quitting before full term which is ILLEGAL (both in letter and spirit).

[0407]

@matchris FWIW, Don't care or bother about what anyone ( including me ) other than those with attorney_XY handles tell you here.

DOL won't hold you responsible for paying H1B fees, Its employers burden not to take from you. I am telling you based on

personal experience with attorney/court and DOL. Don't take it lying down. Go and file a case against your employer.

Most employer just shut up moment you send them your filled DOL complaint form. Some still try to intimidate you

further. File a case and put him in his place.

Good Luck.

[JoeF]

Again, Non solicitation and Non Compete agreement is not only for H1 employees. It is a general employment agreement enforced to all employees in many organizations and the agreement is valid. Google for non-compete agreement. You are mixign two things -- Holdong the wage of an H! employee for any reason whatsoever is illegal but that does not mean Employer cannot sue the Employee for violating non-compete agreeement .

Courtesy Joef :) , I know non-compete is not enforceable in CA but it is valid in most states. Do not misguide people.

Of course, even in the states were non-competes are enforceable, the non-compete has to be reasonable. It can't be as broad as prohibiting all work in the industry (some employers tried that...)

But it may need a court decision to find out.

[JoeF]

Further to our discussion, see this . While Employer cannot recover H1 costs, Employer can DEFINITELY have a Liquidated Damages Agreement (also Non-Compete -- if you work for a regular American company, you will know what it is)

http://www.dol.gov/c...e/guide/h1b.htm

"Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract."

Of course, the law is what rules. 20 CFR 655.731 is the law text. http://www.gpo.gov/fdsys/pkg/CFR-2012-title20-vol3/xml/CFR-2012-title20-vol3-sec655-731.xml

[chakrakr]

I personally feel, all ******** consultants need to be weeded out. These are they guys that are preventing

better qualified from reaching US. These guys ( including Big 3 in India) file H1B without any immediate

need ( and thus eat up quota). Big 3 send the guys when they have actual project, make them sign all kind

of bonds. ******** shops start hunting for project once you have H1B, try to stop you from visiting India

( to avoid stamping).

Who are the "better qualified" ? Those who need to pay "half of H1 Fee" by some "well reputed company" :) In spite of your false claim the big 3 do not ask you to pay "half of H1 fees" . No one gets a H1 now if they do not have a project . A client letter is required.

[rahul412]

I personally feel, all ******** consultants need to be weeded out. These are they guys that are preventing

better qualified from reaching US. These guys ( including Big 3 in India) file H1B without any immediate

need ( and thus eat up quota). Big 3 send the guys when they have actual project, make them sign all kind

of bonds. ******** shops start hunting for project once you have H1B, try to stop you from visiting India

( to avoid stamping).

This is the reason why some people are against H1 misuse.