Employment Agreements and Immigration Options
Posted Sep 25, 2009
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Many individuals in H1B status sign agreements with their employers regarding their terms of employment. Such agreements are considered fair when their purpose is to safeguard both parties who have certain rights and obligations. Generally, written agreements are intended to protect employers' investments of time and money in recruitment efforts by preventing employees from leaving the employment after a short time, or from accepting employment with a client or contact of the employer. To keep their business profitable, employers count on a period of longevity once they have invested in the hiring of employees. On the other hand, employees sometimes find themselves in bad situations with their employers, or simply want to leave for an opportunity elsewhere that seems more desirable.
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Employment and Contract Law Issues
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One's current employer does not have to give permission for a new employer to file an H1B petition, or for the U.S. Citizenship and Immigration Services (USCIS) to approve such a petition. Any agreements between the employer and employee are separate legal issues, generally governed by state law dealing with contracts and employment. These are not considered by USCIS officers when they review and adjudicate H1B petitions filed by new H1B employers.
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Of course, the ability to obtain approval of an H1B petition through a new employer does not mean that agreements negotiated and signed by the parties may be ignored. Generally, most employment agreements and non-compete agreements are governed by state employment and contract laws. Individuals who have signed such contracts need to seek advice based on the laws within the respective states where they are employed. One should contact a qualified employment law attorney to obtain an opinion as to whether the agreement is likely to be enforceable. This should be done before making any change of employment or commitment to a new employer.
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Employment Termination and Penalty vs. Liquidated Damages
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From an immigration point of view, it is not permissible for an H1B employer to require payment of a penalty from an H1B worker for ceasing employment prior to the expiration date of the H1B petition. The employer, however, is allowed under immigration law to recoup bona fide liquidated damages for early termination by the employee. Whether the DOL will regard an agreement as containing a penalty will depend upon the laws of the controlling state. Employers must have these matters evaluated when drafting any such agreements.
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Legal and Practical Considerations
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Sometimes questions about leaving the H1B employer arise because the employer is not meeting the standard H1B requirements. Workers find themselves in difficult positions, not receiving proper work assignments or payment, for example, but fearing that they cannot leave because of an employment agreement. If the employer has not met the contractual obligation of the employment terms, this should be documented and analyzed by an attorney knowledgeable in the employment laws of the state.
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When evaluating the risks of going against such an agreement, it is necessary to understand the cost of legal representation, should the employer try to enforce the agreement. Even if the agreement ultimately is not enforceable, there are likely to be costs associated with the legal representation required to argue or negotiate a compromise of the matter.
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Conclusion
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Employment agreements, as stated above, are fair when they safeguard both the employer and the employee, regarding their respective rights and responsibilities. To avoid finding oneself in the position of not knowing whether the terms in an employment agreement hold up legally, it is always best to obtain legal advice before signing any such contract. Once signed, potential legal obligations are created for both the employee and the employer, even if it ultimately is not enforceable. Employment agreements can both help and hinder all parties concerned - depending upon the terms and the applicable state and federal laws.