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H1b employee agreement

Chicago, IL |

HI,
I am on H1b Visa working for employer A.
A -> B -> C (A - Current employer B - Prime vendor C - Client)
A has the following terms :
For a period of two (2) year following the date of termination of the Agreement, for any reason by either party, EMPLOYEE will not directly or indirectly, or through a "Competitor" of the EMPLOYER, provide or attempt to provide (or advise others of the opportunity to provide), and/or sell or market any services to CLIENT of the EMPLOYER without the specific "Written Consent" of the EMPLOYER .

I want to change my employer from A to D and work for D -> B -> C
(D- New potential employer , B- Same Prime vendor , C- Same Client)

1) Can the employer A know about me working for the same Client C through my new employer D ?
2) Would it be any issue ?

The terms by employer A also includes : EMPLOYEE covenants and agrees that if he/she shall violate the above, EMPLOYER shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE shall receive out of or in connection with any such violation; such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which EMPLOYER is or may be entitled at law or in equity pursuant to this Agreement

Attorney Answers 3


  1. I am sorry. But, even though visas are involved, this is not an immigration question.

    With that said, you should try to find a 'real' employer ... these "job shop" employment arrangements seem to regularly be problems for the worker.

    I will re-classify as an employment law question.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.


  2. I could not agree more. Mr. Capriotti has summed it down to what it seems. H-1B requires a bona fide employer-employee relationship. If you are merely looking for someone to run your pay roll, the H-1B petition is unlikely to fly with the USCIS and later at the visa interview.

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.


  3. For purposes of this Answer, and although it may be an issue, let's put aside the issue of your H1 visa and the requisite employer sponsorship.

    From a non-compete perspective, yes, at least in Illinois there could be an issue. From the facts you recite, it seems it is your plan and intention to compete with Employer A and to indirectly sell or market services to the Client. That is what the terms you recite expressly forbid. The full terms of the non-compete/employment agreement would be helpful to assess its overall validity and strength. It would also help to know additional facts, such as whether or not your role with A included access to information about Client, or work involvement with Client; and what is the geographic distance of A from Client, and did D have a prior relationship with Client, even indirectly?

    The ability to navigate work within the confines of a non-compete agreement requires particular legal knowledge. Choose an attorney wisely and be sure to consider the impact any actions you undertake will have on your residency status. Many of us have colleagues skilled in immigration law for consultation on such issues. Even your new employer, D, can be dragged into the mix if A decides to assert rights to prevent D from utilizing your knowledge and relationship to "compete" for Client's business.

    I hope this helps!

    John R. Malkinson/ Malkinson & Halpern, P.C.

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