Very Urgent :Advice me on h1b agreement

[chanlal]

Hi My name is Chamraj from India, obtained a h1b from a new jersy based company in Dec 2007. I have signed the agreement of Employment i.e part of my offer letter before appearing for my visa interview.

Infact they had given two offer letters. 1. offer letter with no agrrement of employment after shortlisting me for processing h1b.

2, Offer letter with agreement of employment just before going to us consulate for stamping.

I was asked to give a indian bank guarantee of 100 thousand INR, so i have given them a BG of 100 thousand INR. During last 30 months i was asked to renew my BG twice and i did the same and gave them the renewed copies. But they never bothered to send me to us on h1b.

BG got expired on last month and now they want me to travel to US immdly.
If i do not travel they were asking me to pay 4000 USD as the expenses incurred to process my h1b visa. They also want to take legal action against me.

I have waited for 2,5 years waiting for them to send me to us. they did not send me during last 2.5 years,

Extract from Agreement: If the employee terminates the agreement prior to the minimum period of 18 months, the employee will pay company liquidated charges of 4000 USD.


I am still in India and i was not paid single penny by the company so far. I waited for more than 18 months and now already 30 months over.

Pls advice how i can face his legal action. Can he take a legal against me when i am india where the offer is subject to laws of New Jersy state laws.

Thanks

[gc28262]

This company is on the wrong side of the law. Please read H1B laws from DOL(Department of Labor) site.

Employment Law Guide - Workers in Professional and Specialty Occupations (H-1B, H-1B1, and E-3 Visas)

Employee Rights
H-1B, H-1B1, and E-3 workers are granted a number of rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. 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.

U.S. workers and job applicants may also have certain rights under the H-1B programs. U.S. workers employed by an H-1B dependent or willful violator employer may not be laid off within 90 days before or after the employer files a USCIS petition to employ an H-1B worker in an essentially equivalent job. In addition, an H-1B dependent employer or willful violator must offer the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B alien worker. The U.S. Department of Justice has the authority to investigate complaints of failure to hire qualified U.S. workers.

No employer of H-1B, H-1B1, or E-3 workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.

U.S. workers and H-1B/H-1B1/E-3 workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements.

Complaints about non-compliance with H-1B/H-1B1/E-3 labor standards may be filed with a local Wage and Hour Division office.
U.S. Department of Labor — Wage and Hour Division (WHD) — District Office Locations

If you want to complain about this employer, fill in WH4 form and send it to one of the following offices
Northern New Jersey District Office
US Dept. of Labor
Wage & Hour Division
200 Sheffield Street, Room 102
Mountainside, NJ 07092
Phone:
(908) 317-8611
1-866-4-USWAGE
(1-866-487-9243)
Joseph Petrecca
District Director

Southern New Jersey District Office
US Dept. of Labor
Wage & Hour Division
3131 Princeton Pike, Bldg. 5, Rm. 216
Lawrenceville, NJ 08648
Phone:
(609) 538-8310
1-866-4-USWAGE
(1-866-487-9243)
Pat Reilly
District Director

Also let your friends know that it is illegal for the employer to ask money for H1B processing and also making you sign a bond.

[chanlal]

Thank you for your prompt response

1. Since company did not send me to USA after getting h1b visa 32 months back. Can he take legal action to pay liquidated charges? as mentioned below in the agreement.

Extract from Agreement: If the employee terminates the agreement prior to the minimum period of 18 months, the employee will pay company liquidated charges of 4000 USD.

2.Can New Jersy laws applicable in India to send a legal notice to me?

3. Since I have not travelled to USA on H1B, Can I be called an Employee of that company who processed my H1B.

4. Can I take any legal action against him as he did not send me to USA despite the fact that I renewed the Bank Guarantee twice.

Pls answer the above 3 questions.

[snathan]

Originally Posted by chanlal

Thank you for your prompt response

1. Since company did not send me to USA after getting h1b visa 32 months back. Can he take legal action to pay liquidated charges? as mentioned below in the agreement.

Extract from Agreement: If the employee terminates the agreement prior to the minimum period of 18 months, the employee will pay company liquidated charges of 4000 USD.

2.Can New Jersy laws applicable in India to send a legal notice to me?

3. Since I have not travelled to USA on H1B, Can I be called an Employee of that company who processed my H1B.

4. Can I take any legal action against him as he did not send me to USA despite the fact that I renewed the Bank Guarantee twice.

Pls answer the above 3 questions.

No. They can not do anything. Just send the above document to them and tell you will inform DOL and USCIS if they keep pestering you

[gc28262]

Originally Posted by chanlal

Thank you for your prompt response

1. Since company did not send me to USA after getting h1b visa 32 months back. Can he take legal action to pay liquidated charges? as mentioned below in the agreement.

I don't know the details about the contract. Just complain to DOL. Your "employer" will be so busy defending themselves, they won't have any time left to come after you.

Extract from Agreement: If the employee terminates the agreement prior to the minimum period of 18 months, the employee will pay company liquidated charges of 4000 USD.

Liquidated damages ? Not sure how they have incurred some damages because of you. Since they claim to be your employer , they are supposed to pay you the salary all these years. Have they paid you all these years ?

2.Can New Jersy laws applicable in India to send a legal notice to me?

I am not a lawyer or one knowledgeable in law. Discuss with a lawyer in India and see whether your employer can do anything to you in India depending on the contract you signed. As for US side, you have nothing to worry.

3. Since I have not travelled to USA on H1B, Can I be called an Employee of that company who processed my H1B.


4. Can I take any legal action against him as he did not send me to USA despite the fact that I renewed the Bank Guarantee twice.

As for US, complaint to DOL. DOL will do the needful without you spending a paisa. For India, discuss with an Indian lawyer.

Pls answer the above 3 questions.