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Retrogression, priority dates and Visa bulletins Issues surrounding the retrogression of the priority dates for the various employment based categories

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  #31 (permalink)  
Old 04-22-2008, 09:23 PM
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Originally Posted by vinabath View Post
Only if it is too restrictive. this case is pretty straightforward and simple. employee is directly hitting the employer's revenues.
That means nothing in the court actually. It takes a lot more such as violation of trade-secrets for a court to rule against an employee. If hitting revenue was a valid reason not to change a job, nobody will ever be able to change a job.

What you mention is a common misconception.

"In Virginia, a plaintiff must prove by a preponderance of the evidence that the covenant is reasonable in the sense that it is: (1) no greater than necessary to protect its legitimate business interests, such as a trade secret; (2) not unduly harsh or oppressive in restricting the employee’s ability to earn a living; and (3) not against public policy."

http://en.wikipedia.org/wiki/Non-compete_clause

Last edited by Gravitation; 04-23-2008 at 10:54 AM.
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  #32 (permalink)  
Old 04-22-2008, 10:44 PM
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Originally Posted by kshitijnt View Post
After reading this post completely, here is my take. There are 2 things to view here:
1) employer and employee conduct.
2) non compete.

employee by leaving his job to work for PF has actually worked in unethical way if not illegal. You should have joined the PF to start with. Second thing is, you said your PERM is in process. How long ago did you file it? If you filed it more than 6 months ago, maybe you didnt know you were going to leave. Did you file it very recently despite knowing that you may join PF? In that case why you wasted your employers money? Also who picked the fight? You or employer? See... if the case goes to the court, the judge is going to notice this behaviour and will not like it. I am not saying you are a bad guy, we all make mistakes like this, but in court of law everyone is equal.

employer is not only unethical but also unprofessional in holding back employee wages. It does not matter when or with what intention the employee left, employers should not be breaking the law by withholding wages.

Since both sides have made some mistakes, I suggest get a good attorney. That attorney will negotiate with your employer and you will get your money, experience letter and also attorney expenses. There is no need to involve your PF at this stage. Your employer has a relationship with that company and that is the reason they do not want to go to court. However if you conduct yourself in unethical or unprofessional way, your previous employer can indicate that to your current company and that is a bad career move. Your case is very simple and it will be settled out of court. I would say, you do not get involved and commit mistakes under stress, let an attorney handle it.

Lastly, if you consult an attorney, any good attorney should tell you 2 things:
1) you have advantage over employer because employer has withheld your wages which is illegal as they have violated statutes for PERM.
2) It also depends on your non compete, you dont know what you signed. It may not be directly related to GC expense or direct revenue loss, but it may be something that your employer can hold you accountable.

I think your employer is just mad that you left them on unpleasant terms. Here is what I recommend:

1) Send an email, and offer to apologize if any of your actions left the employer less than satisfied. "DO NOT explicitly admit to mistakes. But offer a sincere apology if that can close the matter." Highlight, what you have done for the company, including placing 4 employees, working for 2 years etc. Regret that you had to leave despite filing perm with them and say you will be willing to help in future. Then call your boss. ask for his help. If he doesnt pick up, doesnt matter, leave a VM. However much you dont like doing it. It is necessary to do so. World is a small place and never burn bridges. Also mention in email you would like to get $4K back and experience letter. I will say copy HR, your boss and his boss. etc. The more higher levels you keep in loop, more people become answerable in court of law. If you copy VP etc of your group, if you decide to go court they can be called in as witnesses. They do not want this. No company wants to put their senior executives/managers in cross examinations in court. They know you can sue them, however do not use such language as the judge will not like it and in all probability he will ask you what you did in good faith to get your wage back? And any shouting , calling names etc will count against you for getting any damages.

2) give them 2 weeks to reply. Consult a lawyer, a good lawyer is one who also tells you what was your fault. No lawyer will tell you what you want to hear. All lawyers will tell you to conduct in ethical and professional manner. You know they are representing you. Their reputation is based on merit of your case.

3) if they dont respond in 2 weeks, file a claim in small claims court. serve a notice. In small claims court attorneys are not allowed to practise. If you win, ask the judge to award you maximum penalty allowed under the law. Also mention you want to get it in one payment. This becomes a public record against the company for anyone to see. I dont think any company wants so much hassle for 4K.


thanks a lot kshitijnt.... my gc has been filed about 5 months back. At that point I wasn't planning to shift to PF otherwise i wudn't have made them file it. ya, as u said i shud have started with PF directy. Just because my company filed for h1b, i didn't wanted to ditch theem. Now I realised that its foolish in this fied to be considerate for someone especially desi employers.
Anyways will try ur way and see how it goes.
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  #33 (permalink)  
Old 04-23-2008, 10:32 AM
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Originally Posted by kg318 View Post
I am not hitting on employers revenues, infact employer made money since two yrs because of me. The reason is, employer never got this project for me. It never had any business either with PF or with the client earlier. It was only because of my contact with the PF i got the project. i introduced the PF to my employer, have them sign a contract and since these two yrs my employer was able to place 4-5 consultants through the PF i introduced to them. Now tell me, how much my employer would have made because of me or other consultants??? Even after all this, he is being mean to me. these desi companies thirst for money is never ending. whereas consulatnts can never look up for a better life!!!!!!
You have a case buddy. Since you got the project on your own and you needed an H-1b vehicle. you have a great argument if your employer goes to the court.
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  #34 (permalink)  
Old 04-23-2008, 10:39 AM
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Originally Posted by kg318 View Post
thanks a lot kshitijnt.... my gc has been filed about 5 months back. At that point I wasn't planning to shift to PF otherwise i wudn't have made them file it. ya, as u said i shud have started with PF directy. Just because my company filed for h1b, i didn't wanted to ditch theem. Now I realised that its foolish in this fied to be considerate for someone especially desi employers.
Anyways will try ur way and see how it goes.

nice post by 'kshitijnt'.
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  #35 (permalink)  
Old 04-23-2008, 01:21 PM
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Default do not follow the advice of many members in this thread

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Originally Posted by kg318 View Post
I work for company A which sent me to client C through company B(Prefered vendor). After working with the same client for 1.5 yrs, transfered my h1b to company B(PF) due to issues with the pay with company A. Company A has deducted huge sum of money($4000) from my last months pay towards PERM filing(Still under process). Upon demanding them to reimburse my money saying that its against law, they r threatening me saying that based on non-compete agreement they will take legal action against me.
I am not actually aware of the clauses in the agreement. company B(PF) told me that it does not have any clauses in its agreement with company A prohibiting them from taking me.Though i requested company A to provide me a copy of non-compete, they said i signed with them, they haven´t. The company is located in NJ and not sure how non-competes work under NJ state law.
I am really frustated upon this blackmail and going thru lot of pressure. The amount is too big too leave and cannot afford to hire a lawyer in case they file suit based on non-compete. even if i had signed a non compete agreement how does it stand as it is conflicting the agreement which company a signed with PF saying the upon my termination of the emplyment with them, Pf can take me without any gap period... what can i do to get my money. they also refused to provide me with experience letter which i need for my future GC filing.
Plz give me ur valuable inputs
I just read first page of this thread and would advice that don't follow most of reply because they are lawyers or they have not gone through the experience you are going through. $4000 may not be big amount compared to hassle of law suite , piece of mind or the amount of increase you may have received by switching employer. I know a close person who had gone through exactly same situation in NJ and had to pay 12,000 to settle the case. I have seen bunch of people in same situation and my friend always adviced them to stay away from law suite. If your current employer is not big then there are greater chances that it will turn away from you in case of law suite.

If you are not working with same client that you were working when you were in company A then non-compete may not hold against you.

Also can you get in writing from you current employer that they will support you in case of law suite?
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  #36 (permalink)  
Old 04-23-2008, 01:54 PM
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Originally Posted by aquarianf View Post
I just read first page of this thread and would advice that don't follow most of reply because they are lawyers or they have not gone through the experience you are going through. $4000 may not be big amount compared to hassle of law suite , piece of mind or the amount of increase you may have received by switching employer. I know a close person who had gone through exactly same situation in NJ and had to pay 12,000 to settle the case. I have seen bunch of people in same situation and my friend always adviced them to stay away from law suite. If your current employer is not big then there are greater chances that it will turn away from you in case of law suite.

If you are not working with same client that you were working when you were in company A then non-compete may not hold against you.

Also can you get in writing from you current employer that they will support you in case of law suite?
Are you an desi employer by any chance?. Just wondering…

Also I agree with most of what kshitijnt says but why should somebody apologize even after he has placed 4 employees and has worked for 2 years. He did not leave within couple of months for crying out loud. Some of the desi employers are so greedy and unethical that even after you slog with them for years, they still want to hold on to something just to prove they are employer/boss. This is a lesson for people wanting to help their employers business. I would tell them that it is none of their business to help their employer’s business.
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  #37 (permalink)  
Old 04-23-2008, 02:52 PM
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Default Absolutely right!!

Quote:
Originally Posted by NKR View Post
Are you an desi employer by any chance?. Just wondering…

Also I agree with most of what kshitijnt says but why should somebody apologize even after he has placed 4 employees and has worked for 2 years. He did not leave within couple of months for crying out loud. Some of the desi employers are so greedy and unethical that even after you slog with them for years, they still want to hold on to something just to prove they are employer/boss. This is a lesson for people wanting to help their employers business. I would tell them that it is none of their business to help their employer’s business.


Yes I agree with you, Some are really nastly dont give anything in writting , Dont even apply for H1b until you force them when they hire you on OPT, I have seen some of my freinds had to go back to India because of them. They are to be taugh a lesson, If we are immigants they are too.
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  #38 (permalink)  
Old 04-23-2008, 03:35 PM
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Default issue not yet resolved

hi all,

Thanks a lot for all ur suggestions and support. As of now, nothing is moving on in my issue. The last correpondence with the employer was only when i sent mail asking for my money and got reply saying that they will contact their attorney to see what legal action they can take using non compete agreement. But till today, its calm and they are not replying to any of my mails or calls. I feel like its just a mail to scare me......took an appointment with attorney to discuss this and be geared up for action........
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  #39 (permalink)  
Old 04-23-2008, 03:46 PM
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Originally Posted by kg318 View Post
hi all,

Thanks a lot for all ur suggestions and support. As of now, nothing is moving on in my issue. The last correpondence with the employer was only when i sent mail asking for my money and got reply saying that they will contact their attorney to see what legal action they can take using non compete agreement. But till today, its calm and they are not replying to any of my mails or calls. I feel like its just a mail to scare me......took an appointment with attorney to discuss this and be geared up for action........
Your case is not very clear..How can attroney can advice without reviewing the non-compete agreement?

Non-compete Agreements in New Jersey

Should you sign that non-compete agreement?

It has become fashionable for employers of all types and sizes to require their employees to sign non-compete agreements. These agreements range from very narrow to very broad in scope. A non-compete may bar you from working for a competitor, using or disclosing trade secrets or other confidential information, soliciting customers or recruiting the your employer’s customers. These restrictions generally last from a few months to a few years. Because signing such an agreement can severely restrict your future employment options, you (and your attorney) should review it closely before doing so.

Can you be fired for refusing to sign that non-compete agreement?

Yes, according to the Supreme Court of New Jersey. See Maw v. Advanced Clinical Communications, 179 N.J. 439 (2004).

Will a New Jersey court enforce your non-compete agreement?

Do not make the mistake of thinking that you can sign an agreement and ignore it later. New Jersey Courts routinely enforce non-compete agreements that are “reasonable” in scope. A non-compete agreement will generally be considered reasonable if it (1) protects the legitimate interests of the employer; (2) does not impose an undue hardship on the employee; and (3) is not injurious to the public.

What will happen if you have signed a non-compete agreement that is not “reasonable”?

If the geographic and temporal restrictions in your non-compete agreement exceed the boundaries necessary to protect your employer, a New Jersey court may modify the agreement by reducing those restrictions to make the agreement reasonable. See Solari Industries v. Malady, 55 N.J. 571 (1970).

Last edited by raj2007; 04-23-2008 at 03:52 PM.
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  #40 (permalink)  
Old 04-23-2008, 03:50 PM
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This guy is a deshi employer. He is on H1 so he is a silent partner & that why scratching his head.

There are attorneys who will charge only after recovering money. The stupid employer can be sued for lost wages along with civil penalties from which the attorney's fee will be paid.

Quote:
Originally Posted by aquarianf View Post
I just read first page of this thread and would advice that don't follow most of reply because they are lawyers or they have not gone through the experience you are going through. $4000 may not be big amount compared to hassle of law suite , piece of mind or the amount of increase you may have received by switching employer. I know a close person who had gone through exactly same situation in NJ and had to pay 12,000 to settle the case. I have seen bunch of people in same situation and my friend always adviced them to stay away from law suite. If your current employer is not big then there are greater chances that it will turn away from you in case of law suite.

If you are not working with same client that you were working when you were in company A then non-compete may not hold against you.

Also can you get in writing from you current employer that they will support you in case of law suite?
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  #41 (permalink)  
Old 04-23-2008, 04:34 PM
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Default wow

any one who tells to be cautious is a desi employer or a silent partner. Any one wonder to ask the thread starter

why in the beginning he chose a desi employer and signed a non-compete clause?
why did not get his H-1 done with PF?

every one( desi employer and h-1b employee) have weaknesses and strong points.

H-1B program is the nastiest and problematic for employer and also for the employee. There is a reason lot of american born owned consulting business dont do H-1s. Big over head on the employer. Accounting complexity and hard to follow H-1b and dol rules.

I am not even talking immigration process and family problems H-1bs go through. Desi employers take the risk of doing h-1s and and 90% of them dont even grow beyond 50 people and there is constant battle of retaining H-1 b employees at the same time making profit.

I thought of starting a desi consulting firm and realised it is a lot of pain.

Desi employee

1. wants 80% and may be 90%
2. bare h-1 cost
3. bare gc cost
4. bare insurance cost
5. pay salary on time
6. pay umemp, ss taxes

in addition to the time employer has to spend time to do all the above tasks.

end of the day its not even worth running desi consulting business unless we make atleast 15-20% of the revenue.

end of the day....desi employers have to face the brunt of american born workers and dol that desi employers run poor hiring practices and poor EEO practices and not only that desi employers run down the billing rates.

it is a vicious cycle. desi employees want to work for low billing rates because of their necessity and in turn run down profits of the employers this in turn make both the employee and employer unhappy.

how can a guy with 5 years experience in SAP is ready to work for 60$? LOL.

every knows how the game is played.

another important point employees want the employer run the payroll while they are on bench so that their H-1B status does not mess up. How can an employer run payroll when the employer makes 5-7% profit? LOL.

another one..... employee wants 80% but cannot wait until the client he is working for pays for his services to the employer. employee wants that 80% percent on time. LOL

another one h-1b employees want to cut lines to gc faster. they are ready pay large sums to money to employer to buy earlier PD.

I was H-1b 3 weeks ago. I stayed with my employer for 6 years and still working. and I also know h-1 b is a really bad visa for an employee too.

Ideally USA should give work visas based on individual's merit like an OPT/EAD for 6 years instead of H-1.
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Last edited by vinabath; 04-23-2008 at 04:53 PM.
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  #42 (permalink)  
Old 04-23-2008, 04:39 PM
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Quote:
Originally Posted by gc4me View Post
This guy is a deshi employer. He is on H1 so he is a silent partner & that why scratching his head.

There are attorneys who will charge only after recovering money. The stupid employer can be sued for lost wages along with civil penalties from which the attorney's fee will be paid.

You can view my past posts in IV, I am not Desi employer but I may become very soon to employ myself (very close to get GC :-) )

Anyway have you gone through yourself with same situation/tension as OP going through or do you know someone closely who have gone through? Have you dealt with attorney yourself?


If that employer sue you, definitely you can counter sue for violation of wage related or h1b related rules and attorney will be the best person to advice you on that. make sure you go to an attorney who practice employement laws and have knowledge or have some other attorney in the same firm who deals in immi related matter. But question is, do you want to go through nightmare of law suites or you just want peace of mind.

Last edited by aquarianf; 04-23-2008 at 05:02 PM.
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  #43 (permalink)  
Old 04-23-2008, 04:50 PM
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Both parties ( employee and employers) bend letter and spirit of law. Think fake resumes, references, experiences on employee side. Think no salary on bench, lack minimum professional decorum, professional ethics on employers side. But overall my sympathies are with employee and more so in this case.

In > 90% of cases I have seen, Desi employers dont operate on good faith. A good example is punitive damages. The employer does h1B, incurs about 5K cost and expects the employee to serve out 12 months. The exit clause is 25K. Its downright silly and precisely what causes employee anxiety. Instead if it is prorated for stay, it would be fair for every one involved.
Hoarding I-140, labor certificatio etc and giving no visibility is another deal breaker.I just dont get it.

Some one commented its a small world, apologize if necessary blah blah. If, for a minute the employer in this case thinks in positive way, ( My former employee would be at this place, couuld be in a position where I can sell more, i could get referral for new employees) he wouldnt be doing something like this which downright irresponsible and can cause significant damage to his shareholders. Being a small world goes on both sides.

For a techie, clilent is king. I would never displease the ultimate beneficiary of my services. Even after my project is over, I keep in touch, do occasional free consulting all in hope of building my network. But for employers like these, who add no value, i have no sympathies.
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  #44 (permalink)  
Old 04-23-2008, 05:30 PM
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Originally Posted by aquarianf View Post
You can view my past posts in IV, I am not Desi employer but I may become very soon to employ myself (very close to get GC :-) )
This is not a personal advice but general appeal to all would be employers.

I hope you have researched and understood obligations of an employer.

By virtue of owning the business and taking 100% of returns, the employer has to assume 100% risk.

If not on revenue sharing with employee ( 80-20 etc) , the employer has no business of NOT paying on bench. Either the employee is on rolls or has to be advised to take LOA or let go.

For other unprofessional tactics, there is simply no excuse. Employment is at will. If employers cant deal with that, too bad. They should not be starting the business.

I have worked with Desi employers who have consistently run on best practices and completely adhering to law of the land. It can be done and the cost of doing that has to be factored into the business plan. If it is too costly as per your financial numbers, then you are not ready for it financially.
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  #45 (permalink)  
Old 04-23-2008, 05:32 PM
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Join Date: Mar 2006
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vinabath is on a distinguished road
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my opinions in bold
Quote:
Originally Posted by surabhi View Post
Both parties ( employee and employers) bend letter and spirit of law. Think fake resumes, references, experiences on employee side. Think no salary on bench, lack minimum professional decorum, professional ethics on employers side. But overall my sympathies are with employee and more so in this case.

-- How can an employer pay salary on bench when employee wants to be an independent contractor(80%) on w-2

In > 90% of cases I have seen, Desi employers dont operate on good faith. A good example is punitive damages. The employer does h1B, incurs about 5K cost and expects the employee to serve out 12 months. The exit clause is 25K. Its downright silly and precisely what causes employee anxiety. Instead if it is prorated for stay, it would be fair for every one involved.

-- 25k because its just not about H-1b costs. Its business. Business needs to make profits and be healthy. Business dont want H-1B employees who would like to stay for less than an year. It affects other H-1B employees and their immigration process. Businesses hate to ask H-1Bs from INS and cancel H-1s. It puts a blotch on the Business. Afterall INS give H-1B approval hoping that the employee works with the employer for atleast 3 years .


Hoarding I-140, labor certificatio etc and giving no visibility is another deal breaker.I just dont get it.

you are right but this is also forced by H-1B employees.

Some one commented its a small world, apologize if necessary blah blah. If, for a minute the employer in this case thinks in positive way, ( My former employee would be at this place, couuld be in a position where I can sell more, i could get referral for new employees) he wouldnt be doing something like this which downright irresponsible and can cause significant damage to his shareholders. Being a small world goes on both sides.

Thats pretty optimistic and long term thinking.

For a techie, clilent is king. I would never displease the ultimate beneficiary of my services. Even after my project is over, I keep in touch, do occasional free consulting all in hope of building my network. But for employers like these, who add no value, i have no sympathies.
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PD : EB2 - India - 02/2003
I140 -
Received Date 07-02-07
Approval Date 01-30-08
I485(me and spouse) -Received Date 07-02-07
RFE 02-05-08
RFE response Received Date -03-20-08
Soft LUD 3-21-2008
Soft LUD 3-24-2008
Soft LUD 3-25-2008
i485 approval card production ordered -4/3/2008
i485 card received - 4/9/2008
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