We're a small company in TX (100 employees). I hired a gentleman from India who told me at the time that he would need to be sponsored at some point for his work visa, but that he would pay said fees himself. Now he's telling me he needs the company to pay those fees, at around $4000. We will absolutely do this, but $4000 is a lot of money to us. Is it legal for us to require said employee to sign an employment agreement in return, so that we don't pay $4000 and then he just turns around and goes to work for the next highest bidder two weeks later? Ideally, said agreement would stipulate that he has to continue working for us for at least a year following its execution, in breach of which he would owe us a prorated refund for the $4000.
Yes, you could require a contract with your employee. However, if you plan to apply for H-1B status for him, remember that his salary, after the possible deduction of the $4,000 must match or exceed the "prevailing wage" for his occupation in your geographic area.
For more information about this requirement, please see
Department of Labor rules require an employer to pay the costs of preparing and filing a labor certification application, but there are some situations in which you can require an employment contract with a liquidated damages clause. You should obtain independent counsel to advise you with regard to the required fees and what type of clauses in an employment contract would not run afoul of USDOL rules. Unfortunately, employment based immigration has become more and more contentious with dissatisfied or victimized employees who wind up complaining about their employers' practices, sometimes resulting in large judgments against the employer. The natural tendency of many employers is to tell the employee to find his or her own counsel who will then tell the employer what to do, but it may be worthwhile for the employer to obtain its own counsel in order to hopefully avoid potential liability.
Scott D. Pollock
Scott D. Pollock & Associates, P.C.
105 W. Madison, Suite 2200
Chicago, IL 60602
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