H-1B Immigrants Face Lawsuits from Employers

People from countries like India are often recruited by computer or IT employers to immigrate to the U.S. to work. Many such H-1B immigrants are unaware of the dangers of entering into contracts with such employers. Many computer or IT employers use questionable or unethical tactics to try to force H-1B immigrants into contracts of indentured servitude. The following pattern is being repeated over and over again. A computer or IT employer offers an H-1B immigrant an employment contract, while he is still living in India. The computer or IT employer offers to sponsor and pay for the H-1B visa application. Once the visa is granted, the H-1B Indian immigrant arrives in the United States. As soon as the H-1B Indian immigrant arrives, the computer or IT employer changes the deal. The computer or IT employer puts the Indian immigrant in a room and has several employees confront him in intimidating fashion with a different contract. This different contract requires prolonged service to the company and imposes penalties if the employee resigns too soon. The Indian immigrant can either sign the new contract or return to India. He then signs it feeling that he has no choice. After the Indian immigrant signs the new contract, he then finds a better paying job and leaves the IT employer. The IT employer then sues him for breach of contract for leaving to early.

H-1B immigrants can sometimes win lawsuits against IT employers, when they can show that the employer has acted in bad faith or has used unethical tactics. Additionally, H-1B immigrants may have claims against the IT employer including for fraudulent inducement. IT employers hope that the immigrant will not have the resources to fight a lawsuit.

To prevent becoming the victim of such unethical tactics, H-1B immigrants should insist upon having a provision in the original contract that the contract will not be changed or terminated upon entry into the U.S. or for, at least, a period thereafter. Such immigrants should retain copies of all important documents. Copies of documents need to be retained in the event the IT employer denies the existence of any pre-existing contracts. If an H-1B immigrant is already being sued for breach of contract, it is important to seek legal representation so that the unethical tactics can be exposed and a possible counter suit filed.

Ronald J. Wronko

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3 Responses

  1. I have an issue with my employeer regarding the employment agreement. And I received a Lawyer notice from my employeer.

    Recently I got a fulltime offer with the company where I am currently working and I took that offer. As a family man I thought is a good option rather than working as a consultant (from past 2 years I worked with the same consulting company). But my employeer is raised an issue as per the agreement that I am not suppose to join directly or indirectly a client where I am currently working and he told I didn’t given 2 weeks notice you need to stop working that company and need to change my joining date. He is forcing me to send the time sheet after leaving the company a month back.

    Before processing my H1B we didn’t spoke such agreements. He asked me 2500$ to initiate my H1 process and I paid he processed H1. After getting H1 I came to US with my flight charges. After I attended couple of interviews I got selected with one client. Before joining to the client he asked me to sign one agreement which they need to sent to Vendor. I remember only one document that I signed I am not sure weather he is talking about that document (as agreement)? He didn’t given any copy of that document to me.

    Can you please help me what I can do now…. I already got notice from Lawyer and he is going to send the Legal notice with in few days.

  2. Is the document regarding a non-compete issue? If so, you last employer should have made you fill out an agreement prior taking employment.

  3. Friends,

    Be aware of your rights. Charging for H1B processing is illegal. Charging for any training is ILLEGAL. NOT PAYING ON BENCH IS ILLEGAL. To make things simple for you I am listing all the lawsuits from the following site and summarizing the findings. Dept of Labor has it very clear. Not paying on becnh is illegal. A person is considered on bench if the employment is not properly terminated.

    Look at all these cases
    http://www.oalj.dol.gov/PUBLIC/INA/R…_DECISIONS.HTM

    Charging for H1B processing is illegal. Charging for any training is ILLEGAL. NOT PAYING ON BENCH IS ILLEGAL
    2003-LCA-12 Neerja Rajan vs International Business Solutions. Making employee sign bonds which says that employee must pay XYZ $ if he /she leaves before n months IS ILLEGAL. THERE IS NO BONDED LABOR.
    2006-LCA-29 USDOL Vs Avenue Dental

    You must complain to DOL if you feel you have been wronged. There is no time limit for complaining. You can complain even if you had to leave USA. You can complain from India. The judge will listen to your case on phone. You DON’T NEED A LAWYER. THE DOL WILL FIGHT THE CASE ON YOUR BEHALF. YOU JUST NEED TO MAKE A COMPLAIN TO DOL
    2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

    Employee need not ask for bench pay. Employer must give even without asking
    2005-LCA-36 Zhaolin Mao vs George Nasser

    Employment is not terminated unless employer does the three things –
    1) Give employee notification of termination
    2) Inform INS
    3) Offer return ticket
    2005-LCA-36 Zhaolin Mao vs George Nasser

    Employer cannot retaliate against employee( if employee complains to DOL) by cancelling his/her visa. This is because complaining to DOL is protected activity.
    2006-LCA-9 USDOL vs Clean Air Technologies
    2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

    Employer needs to pay employee what amount is mentioned in LCA even though employe may be making extra money through other sources
    2004-LCA-21 USDOL vs Pegasus Consulting
    2006-LCA-29 USDOL Vs Avenue Dental

    Employer must pay even though employee has lied in resume
    2003-LCA-12 Neerja Rajan vs International Business Solutions

    Your LCA doesn’t stop even if you convert to another visa. The employer has to pay you till end of LCA unless there was bonafide termination of employment i.e. notification to INS etc
    2004-LCA-21 USDOL vs Pegasus Consulting
    2005-LCA-36 Zhaolin Mao vs George Nasser

    Interest must be paid on backwages
    2006-LCA-9 USDOL vs Clean Air Technologies
    2005-LCA-36 Zhaolin Mao vs George Nasser

    Employer is personally responsible for the LCA violations. The DOL can make the employer pay from his own pocket by piercing the corporate veil. Company formation doesn’t remove liability of employer as an individual. The bodyshopper cannot declare bankruptcy to run away from his obligations
    2001- LCA-10 USDOL vs Mohan Kutty
    2004-LCA-40 USDOL vs Home mortgage
    2006-LCA-29 USDOL Vs Avenue Dental
    2005-LCA-42 USDOL Vs Priority one software

    In case employer fails to affect a bonafide termination then backwages need to be paid till end of visa period.
    2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

    Courts will impose additional fines and penalties on employer.
    2004-LCA-6 Amtel vs Yongmahakapakorn ( Rung)

    Employer cannot mask bench time by deception by making you sign leave of absence letter
    2003-LCA-22, USDOL vs Synergy Systems
    2002 – LCA-22 USDOL Vs Novinvest

    Employer is required to keep LCA ( all immigration papers) for Public examination and give you your visa papers. If employer doesn’t give immigration papers then he cannot terminate you. That means you must be paid as there has been no bonafide termination. The employer is required to keep LCA papers near the kitchen/coffee room.
    2001- LCA-10 USDOL vs Mohan Kutty
    2003-LCA-15 USDOL vs Ken technologies
    2006-LCA-29 USDOL Vs Avenue Dental

    Employer cannot park visa by taking calculated risk
    2004-LCA-21 USDOL vs Pegasus Consulting

    Courts understand that employee is desperate to maintain his/her visa status and sometimes is late for filing complaint
    2003-LCA-12 Neerja Rajan vs International Business Solutions

    Most bodyshoppers are willful violators. Civil penalties will be imposed on them
    2004-LCA-40 USDOL vs Home mortgage
    2006-LCA-26 USDOL Vs API Accounting
    2003-LCA-22, USDOL vs Synergy Systems
    2001- LCA-10 USDOL vs Mohan Kutty
    2006-LCA-29 USDOL Vs Avenue Dental
    2006-LCA-26 USDOL Vs API Accounting

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