H1B transfer - Advise needed

[appolyn]

Hi Senior Members,

I am really inspired by you guys and the work you have been doing. A huge thanks to all of you.

I will explain my situation -

I am working for a consulting company A and am on a project. As with every other desi company I have been having issues with this company with regards to Pay, they took half the costs ($5000.00) from involved for my GC process, they filed for my brother's H1b (based on me telling them to apply for him as I dint know abt this company then) earlier and he transferred to a diff company and now they are demanding money for the same, and its a nightmare to deal with them during time off between projects. By the way my I140 has been approved but they have not given me a copy of my approval notice nor my Perm approval notice.

I got an offer from a big American company (Direct - no consulting) and no they are not clients of my current employer. On July 31 they have filed for my H1B transfer under regular processing. The attorney (again a very big and known law firm) confirmed with Fedex that my petition has been delivered to USCIS on Monday (Aug 3) and they said that it will take 1 to 2 weeks to get the receipt after which I can start working for the new company.

So everything smooth till now but now comes the issue - I have signed an employment agreement which says I "need" to give them a 14 day notice and they specifically have said they "shall" give a 14 day notice upon terminantion. Now my question:

1. If I give my employer a 14 day notice now and do not get the receipt till my last day of employement and they revoke after 14 days, what happens to the gap between my revocation and the date I start working for the new firm. Will this be considered ULP or am I safe as my Petion has reached USCIS before my current employer revokes? I will not be on anyone's payroll for that Gap - is this out of status? The attorney said that I need to be employed when my transfer petition reaches USCIS to avoid status issues. He declined to comment on the notification part.

2. If I give my employer a 14 day notice now and they immediately revoke my H1B (they are very capable of doing so) because they have mentioned that they "shall" give a 14 day notice and not "need" on the agreement? Stupid question - does the word shall and need have diff meanings when it comes to legal agreements? - again what happens to the time between them revoking and the start date? In this case the gap might be 2 weeks?

3. If I want to play it safe can I just quit the company without notice after I get my receipt? (My future emp wants me to start imm when I recieve my receipt and I have agreed to it). Can my current employer file a breach of agreement and what might be the consequences at worse? There are no penalities stated on the agreement for doing so. It just says that I need to give the notice.
Honestly I thought this will be my best option because I want to give this guy a taste of his own medicine - how it feels when you have the upper hand and exploit others.

4. How long does it take to get a receipt under NP? Does it make a diff to USCIS, as far as the Receipt and processing time are concerened, that the Law office and the petitioner are very big companies and not body shops or consulting companies?

5. Can I complain or threaten to complain (If they file for breach of contract) to DOL about them taking half of the GC costs from me ( Luckily I have an email from them talikng about the same) and them demanding money for my Brother's H1B?

I am sorry but I know I should have done some research before joining this guy and should have thought before signing the contract but circumstances at that time were as such. Anyways I have learnt my lesson.

What would you do if you were me for a safe route out. All I want is to come out of this pain in the Butt company and join the new company without any issues and start off the most important phase of my career on a positive note.

Please note PP is not an option as the new emp is not willing to do it even if I am ready to pay for it. They have a company policy to not do PP unless necesseray by their own set of requirements. I tried as hard as I could but was not able to convince them.

Please advise ASAP so that I can act accordingly.

Advanced thanks.

GOD BLESS,
Appolyn.

[txh1b]

1. Follow the attorney
2. Notice is a courtesy not a legal requirement as most states are right to work states. That doesn't mean the financial impacts are zero unless it was specified on the notice part of the contract as to what the financial impacts are.
3. You can. The company will not have the guts to do so unless they have followed H1b rules to the word which I doubt as you mention it is a South Asian company.
4. 7-10 days
5. You should even now after you switch employers. These scumbags never cease to exist.

[appolyn]

Follow the Attorney

Hi TXH1B,

Thanks for your quick reply. I was hoping you would answer.

2 more questions.

1. Follow the attorney -

This is what my attorney said when I asked him about me giving notice - "If you were still employed when USCIS received your petition on AUG 3, there shouldnt be any issues regarding whether you were in status when company 'X' H1B was filed. With respect to giving notice to your employer that's between you and your employer, however, there is no requirement in immigration law that you must wait to give notice to a current employer until receiving the new employer's fee receipt. Company 'X' must wait until it receives the fee receipt before you can begin work there under H-1B portability".

This still doesnt tell me if it is safe for me to give them the notice now. Does this mean that if my employer (Scumbag in your words) revokes my H1B immediately will I still be in status till I get the receipt, without being on neither one's payroll, and start working for the new company.

2. Although completely irrelevant to the issue - Are you a guy or a girl? It really doesnt matter but just curious

Once again thanks for all the time.

Appolyn.

[txh1b]

1. You are in valid status as long as you work using H1b portability. You can begin work for new employer the day USCIS receives your petition for transfer and need not wait for the receipt either. As mentioned earlier, notice is not a legal requirement.
2. Keep guessing.

[appolyn]

Thanks

Thanks for the clarification.
This is what I understand -
1. Since my new employer clearly told me that I will start only when I recieve the receipt, which means I should stay with my current employer till then and just tell them the day I recieve my receipt that I am leaving without any notice.

2. Even though it is specified in the Employement Agreement to give a 14 day notice, it is not a legal obligation and they cannot file any case against me on basis of that.


Let me know if I am wrong.

GOD BLESS,
Appolyn.

[txh1b]

Why don't you give a notice after you get a receipt and leave the company after two weeks and join the new employer? Do not complicate things that need not be.

You could do whatever you want in a right to work state to but check your contracts signed if it has any legal implications.

[appolyn]

Commitment to New employer

Hi,

Thanks again.

I can do that but I have already committed to my new employer on a date (which is less than two weeks and it might very well be the day right after I recieve my notice) and moreover they wanted me to start ASAP and dint expect the process to take so long in the first place. I dont want to keep jugling the dates as they will be my new employer going forward.

I know its better not to complicate things but just trying to get out without any issues.

I dont have an attorney for myself but I am thinking of talking to an Attorney about this as well...do you know anyone who is not heavy on the bucks??

GOD BLESS,
Appolyn.

[txh1b]

You need to talk to a labor law attorney. Look for your city BAR association and many of them do offer initial 30 min consultation for as low as 20-30 bucks.

[appolyn]

Ok. I will try to find out.

Thanks much for all the replies.

Appolyn.