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Is service commitment valid for H1Bs?

 
Greenhorn
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I am currently based in India and have been offered an H1B employment in the US. In the employment agreement, there is a clause which says that I have to pay $X if I leave the company's employment before 18 months.

Is this clause legally valid? And is it normal in the US to ask for such commitments?

Please advice...

thanks in advance
AS
 
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Is this clause legally valid? And is it normal in the US to ask for such commitments?


This is very unusual for US programmers working in the US. The employer would have to base the payment on specific out-of-pocket expenses like tuition for outside training, and even then it would be hard to enforce.

According to posts on this BB, it's common in India, so it's not surprising to see it asked of Indian programmers coming to the US. Presumably, the employer could enforce the agreement by witholding the "relieving letter" that Indian programmers may need to get their next job. As to whether it's enforcable in court (US or Indian), you'd have to ask a lawyer in the state you are concerned about.

I suggest you look at the posts below for more information.
 
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I've seen many "illegal" Indian software consulting companies in the U.S with "illegal" H-1B workers.

Watch out if the company you've got an offer from is "consulting/staffing" firm, because they exploit the current H-1B program with illegal practice.

Also note that "benching" is strictly prohibited under the H-1B laws. You must be paid the salary indicated in the Labor Condition Application constantly throughout the H-1B period.

This basically means that it's almost impossible for an H-1B worker to work as a consultant in the U.S while maintaing legal status.

For example, given the current economic situation, it's very common for a consultant to have a period of non-productive time (such as the transition time in-between projects).

Typically, consultants are paid on hourly basis so they don't get paid at all in-between projects. This is fine for U.S citizens or Green Card holders and they usually use these times as vacation. However, be aware that these kinds of practice is strictly illegal under H-1B laws, and many of the Indian consulting/staffing firms are doing this.

I hear lots of complains on this forum about the current H-1B system, and those Indian consulting firms are the one who currupted the H-1B program. I'd strongly advise against taking the position if this is a situation where H-1B exploitation is going to happen.
[ October 30, 2004: Message edited by: Jay Shin ]
 
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This is odd, I thought there were no more H1B's available this year anyway, at least until Tuesday.

As far as the "service commitment" goes, these rarely fly in North America. The usual alternative is a "completion bonus". It's really the same thing, its just that the employer promises to pay an additional $10,000 if you complete the assignment, instead of threatening to take that much money away if you don't.
 
Greenhorn
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Looks like a real dodgy offer given that the H1Bs have run out.Make sure that you know more about the employer(there financials etc) make sure that there is really a client.

If the company is more like a body-shopper try to avoid it.

There are better oppertunities in India than US..think twice about it!

Cheers...
 
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Hi Ashok !

I am currently based in India and have been offered an H1B employment in the US. In the employment agreement, there is a clause which says that I have to pay $X if I leave the company's employment before 18 months.
Is this clause legally valid? And is it normal in the US to ask for such commitments?


This clause is certainly legally valid both in India & US, because you are allowed to change employer as long as the new one agrees to fill the petition for you, this is designed of course to prevent an unique employer to have too much power on you. So don't fight on this point, you would loose. As the company takes a financial risk for you can change company easilly, they may ask for compensation, logical and certainly legal.

But what bothers me much is the fact they offer you an H1B while they are no longer available in practice for about 5 years (for H1B is valid for up to 6 years and older ones are simply renewed), this seems to mean this indian company got a pool of H1B visas by advance, or worse gathers still valid H1B visas of leaving employees and use fake documents to lurk INS so they believe you are the right visa owner. Now that all H1B are attributed on 1st october, they simply CANNOT LEGALY offer you an H1B, it is totally IMPOSSIBLE (unless it is for next year october 2005, but I doubt much they are willing to pay you 11 mounths for nothing untill you can legally have it).
So I recommend you think much about it, this is certainly a visa fraud which could cost you much unless you can prove this company is responsible. Depends how much vigilant INS will be in near future.

In all I believe you should consider this : are the jobs ads which remain unfullfiled fake or not, so is there a real lack of qualified manpower in IT field on US soil ? This is the only point, as for about 5 years US companies CANNOT HIRE ALIENS ANY LONGER because of H1B quota still renewed for existing ones, and other visas are totally irrelevant for this case. So if shortage of qualified IT professionnals in US is real this may be a great opportunity for you, unless immigration law change but this remains very unlikely. If this shortage is real and you want to work in US you should accept, if not avoid it like pest. Don't forget to consider that an US job right now for an alien will be very unpleasant with low pay and no consideration for a high cost of living, for there are too many available jobless workers so situation is very bad right now. If you are indian a job in india is much better anyway for you that any US job, it simply depends on the price you are ready to pay for working in US. Perhaps it will go much better, but working in US right now for an alien without a GC is probably the worst option anyway.

Best regards.
 
Mike Gershman
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I doubt if a company routinely bringing workers to the US with false documents is in a position to take them to any court to collect money. All it takes is one phone call to US Immigration - the H1B's are cancelled, the company principals are barred from entry to the US, and the company is ruined when it's people are expelled from the US in the middle of their contracts.

There must be another angle here, but I agree it sounds very risky for the employee.
 
Eric Lemaitre
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Hi Mike !

I doubt if a company routinely bringing workers to the US with false documents is in a position to take them to any court to collect money. All it takes is one phone call to US Immigration - the H1B's are cancelled, the company principals are barred from entry to the US, and the company is ruined when it's people are expelled from the US in the middle of their contracts.
There must be another angle here, but I agree it sounds very risky for the employee.


I totally agree with you, but... do you seriously believe INS cares or checks anything in fact about such issues ?
There have been and still are many such H1B visa abuses, in appearence immigration law is strict, and it certainly is about paperless illegals, but I don't see IT immigration subject as seriously considered. All H1B are simply modern handy slaves which cannot ask for proper wages or defend against abuses, or they will loose contract then visa and will be quicly expelled. With all industrial lobies around white house pleeding for afordable low wages workers at any cost even if it is bad for US natives for anyway re-election is not at stake so they don't care (Bush's catastrophic employment figures won't be any issue for his re-election, only Irak and security issues will be), don't you believe instead it is a very convenient solution for boosting lobbies profits ?

Since last election nothing has been done against outdated punching vote machines except introducing new easy to hack electronic ones, certainly because they allow easy cheating for present government so as to remain in place. In the same way nothing is done so as to purge the huge amount of unqualified alien H1B present in US who help keeping unemployment high and wages low, thus boosting IT profits without any political risk for no one complains against responsible people even when it is obvious laws are not applied. Don't you believe this rotten situation is very convenient for industrial lobbies ?

I am on your side Mike, but I really have great doubts anything will be done against abuses as long as present government is in place. Of course laws already exist since long so as to avoid such abuses, but if US government was honestly thinking about applying the law it should have been done since long. As it has not been, either they are totally uncompetent to defend US citizen interests, or it is convenient for them.

Best regards.
 
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Eric is unfortunately right.

So many Indian consuting companies abusing the system and taking away valuable H1B from ppl who deserve it. Be very wary there are so pany ppl who come over and get hired find out the fee they have to pay is much much more. These guys are very ruthless they start with faking paystubs(to meet the H1B requirements) and paying crap to the employee, to even much more. In the end even the employee gets shafted and becomes an indetured servant to the consulting company. In my opinion the consulting company and the employees who use any means to obtain H1Bs are both to blame. Employees who get shafted get what they desrve.

Something must be done about these ruthless companies which abuse and undermine the H1B system. I realy hope the new amendmands giving INS more authority to prosecute the abuser pass. It seems the more the economy gets worse the more the ppl abuse the system.
[ November 01, 2004: Message edited by: Inuka Vincit ]
 
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Actually some companies are still looking for h1Bs ONLY!!.As said earlier in one thread they want people who already have H1.
Arbor Consulting
Trigent
Green Card H1B preferred
Bachelors are preferred but married can also apply
 
Eric Lemaitre
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Hi all !

Please note, just in case it is not obvious, that even if I swear much against H1B abusing indian companies I am not against indians. As a french, I am almost sure that some indians in Pondich�ry and Chandernagor areas at least, as former french colonies in india, have french nationality too (probably double indian/french nationality, if some indians could confirm ?). So I have nothing against indians but only against abusing indian companies.

By the same way the US citizens who swear against INS for obviously very poorly applying immigration laws against abuses surely are not anti-americans, seems obvious enough I hope.

Anyway H1B abuses harm everyone, both US citizens who have a low wages unfair concurrency from H1B who can't complain, and H1B who are totally tied hands and feet and must obey their company by fear of loosing their job so their visa. I believe a fair way to purge the system would be checking qualifications of every H1B and expelling those who are obviously not qualified enough for their present job, but with a preference for H1B attribution when economy goes better and if they have the relevant needed skills. What is more as many are indians because they had practical preference of H1B attribution, and as there are many jobs available in india right now because of outsourcing, this should be a real fair opportunity for present as they won't remain jobless in india.

Best regards.
 
Eric Lemaitre
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Hi Arjun !

Actually some companies are still looking for h1Bs ONLY!!.As said earlier in one thread they want people who already have H1.

At least this indian company (Naukri.com) looks perfectly honest, they ask only for people already owning H1B because they know they cannot provide any. Exception confirming the rule about indian IT consulting companies ???

Best regards.
 
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