Termination clause - H1B Please Advise

[nathuusa]

Hi , I came to US 2013 and my offer letter had this termination clause .While I am trying for other contracts within US one thin haunting me is the clause in this letter which I had signed and accepted . I wanted to know how valid is this clause before the US law and can my  company ignore my requests for experience letter. I have been associated with this company for approx 10 years now .

 

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Abandonment of Service: You acknowledge and agree that your services and your assignment in the United

States are crucial to XXX and its clients, and that any abandonment by you of your services

and/or assignment under this Agreement will cause substantial and potentially irreparable damage and injury

to XXX and its clients. You therefore understand and agree that if you abandon or terminate

your services during your assignment under this Agreement before the assignment is completed such action

will constitute a breach of this Agreement and you will be required, pursuant to this agreement, to payliquidated damages for such breach as specified in Paragraph 22. XXX may also pursue other

available legal, equitable and injunctive remedies against you in a court of law for such damages and injury.

 

Change/Transfer of Immigration Status: You understand and agree that you may not, without the written

consent and approval of XXX, seek any change or transfer of your immigration status in the United

States. You are required to return to India on completion of your assignment under this Agreement and you

shall not participate in any activity that would bring you in conflict with XXX or any authorities

in the United States. You also understand and agree that if you attempt to change your immigration status

from L-1 to H-1B or transfer your H-1B to another employer without the written consent and approval of

XXX, such an action will constitute a breach of this Agreement regardless of when your new status

becomes valid, and you will be required to pay liquidated damages for such breach as specified in Paragraph

22. You acknowledge that a change or transfer of status without XXX's knowledge and written

consent would cause XXX extensive damage, such as damage to client relations, excessive cost

and expense, and loss of time on projects. Some of these damages could cause irreparable harm to XXX

XXX and money damages alone would not recompense XXX for such harm. Further,

non-disclosure of change of status may also cause issues with your own status if you do not disclose this

information to XXX in time and subject you to unauthorized employment. Therefore you agree

that XXX may also pursue other available legal, equitable and injunctive remedies against you in

court for such damages and injury.

 

Termination: You shall not, without the written consent and approval of XXX, terminate your

employment under this deputation Agreement or seek any change or transfer of your immigration status,

either on your own or through the sponsorship of another person or company. XXX may

terminate your projects and assignments under this Agreement and require you to return to India at any time

and for any reason, at which time this Agreement shall terminate. You must return to India by the date

specified by XXX, which may not be extended except in writing by XXX. Should

you fail to return to India upon completion of your assignment with XXX or earlier depending

on company's business needs, XXX shall consider your failure to return to India as breach of

contract and shall declare payable and immediately recover liquidated damages as specified in Paragraph 22.

XXX may terminate your employment for cause with immediate effect. Cause includes, but is

not limited to, non-performance, misconduct, misbehavior, insubordination, theft, fraud, abandonment,

violations of law, violence, threats of violence harassment and/or discrimination of any type, towards any

employee, client or contractor and/or any violation of XXX's or its client's code of conduct. Upon

termination of your employment for any reason, you agree that, in order to complete your duties hereunder,

you shall, at the company's request, make yourself available to XXX upon reasonable notice for

a period of one year to provide information about your services at XXX so that the company

may benefit from your knowledge and experience.

22. Liquidated Damages: In order to fulfill your assignment, it will be necessary for XXX to make

substantial efforts and incur expenses for your training, airfare, and relocation costs. In the event that you

fail to complete your assignment, XXX will incur substantial damages. These may include the

costs of your replacement, airfare, training, lost time on the job and other down-time, loss of client

confidence and customer relations, failure to transfer knowledge, and loss of existing business and future

business opportunities. In the event that you breach this Agreement by leaving a project or assignment before

it is completed, and/or by changing or transferring your immigration status in the United States, without the

written consent of XXX, and in violation of this Agreement, XXX shall declare

immediately due and payable and shall recover from you, as liquidated damages, and not as a penalty, a

fixed sum in the amount of $35,000.00 (USD), which represents a reasonable amount in relation to the

actual expenses incurred by XXX, including, but not limited to, those referenced above.

23. Attorneys' Fees: In any action to enforce this Agreement, the prevailing party shall be entitled to recover,

in addition to liquidated damages and any other appropriate relief, all attorneys' fees, costs, and accrued

interest incurred.

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[jairichi]

OMG, it is an agreement to be a bonded labor for life. Seek the opinion of an attorney immediately and move away from this employer.

[nineballs]

The company is hiring you in the US. So, the US labor laws will apply. The agreement says that you need to go back to India after termination, makes the agreement invalid. Since you are hired in the US, all US labor laws will be applicable. And, 35,000 USD sounds too much.

The labor laws in the US differ from each state. Check your state DOL site about termination clause. If in doubt, check with a labor and immigration attorney.

[pontevecchio]

This is a matter for Labor Law possibly involving Indian Law. You should run the entire contract by a Labor Lawyer here to understand the ramifications. It seems too vast in scope and is possibly not enforceable in its entirety though specific parts seem valid.

[JoeF]

While asking for liquidated damages is allowed, just calling something liquidated damages doesn't make it so.

First, the amount seems rather excessive. Second, the amount would have to get lower over time, since the employer recuperates the investment they made during your work for them.

I suggest discussing this contract with a good immigration lawyer and a labor lawyer.