4/8/2010

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.

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.

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.

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.