Employment Lawyers Can Answer Your Employment Law Questions
I am out of status due to GC filing process delay and I incurred lot of expenses moving family out of this country. I am not injured.
Raji,One of the conditions of filing suit is that you must show some sort of injury or damages that was caused because of some sort of obligation or breach of promise on part of the other party. Here, the injury could be the expenses you incurred but the issue here is whether or not the employer was obligated to provide you with this application and whether or not they ever guaranteed, in writing, that this application would be completed and accepted before your H1B expired. Since a company cannot guarantee that at all (some applications can take close to a year to process), and a green card application cannot really be part of your employment benefits, I do not see a viable cause of action. A promise to apply on your behalf is not a promise that it would be done right away, or accepted right away. There is a potential argument for 'detrimental reliance' on your part, that is, that you were assured and were led to believe this would be concluded, but at least under US law that would be evaluated under the 'reasonable person' standard. That means that courts would try to see whether or not it would be reasonable for you to expect this to be done or not, and I really do not see this considered as a reasonable expectation.Good luck.
Here, I am going out of status because of employer delayed my GC processing.
if they did not process my GC, i am out of the country and I am loosing my carrier. i can't come back.
I joined with this company because of GC process, other wise I would have choose other company which is going to maintain my H1 status.
now I don't have sufficient time to move and start my GC process to maintain my status.
Thank you for your follow-up, Raji. To ensure I do not miss anything, I will respond to each point you make line by line.Here, I am going out of status because of employer delayed my GC processing.I am genuinely sorry to hear that and sympathize. But unless there was a contract stating that the employer was contractually bound to complete such a petition for you, it is not something for which you can sue the employer. A promise to apply, which was performed, tends to insulate them from further suit.
An option may be to see if they are willing to allow you to telecommute until the application is decided.
If you can prove that in writing, and prove tha they issued this as a 'perk', then you could arguably have a breach of contract suit. Otherwise a promise to file for you, which was done, is enough to hold them harmless, meaning if you sue, there will be no injury to claim in this instance.
See if they are willing to extend the H1B until the GC is completed.
Thank you for your clarification:
Company mentioned in offer letter as follows.
Once you are an employee, company will initiate the process required to file an application for permanent residence based upon employment using foreign labor certification.
As stated in all job offers, Company is an employment-at-will company. Employment may be terminated at any time with or without cause and/or notice by you or the company. This letter is a confirmation of employment only and is not a contract or commitment to continued employment.
They can't extend my H1, unless they got approval for I140. Here my concern is if i am out of country, if they stop the process, do i have any alternatives to take on company.
Thank you for your follow-up, Raji.That does help--they have stated that this application is condition of employment, and does help you to hold them liable. If they do fail to pursue this, you would have recourse-you would be able to go to court and file for 'breach of contract' on basis of bad faith, and demand that they conclude this petition for you. Even if you are not in the US, you could still retain local counsel and represent you in court, should it ever get to that point.Good luck.
Thank you for response.
As per my understanding, now company is liable to maintain my status.
But my HR told me that, you may need to leave this country, till you get new H1. if there was no Query on my PERM application i may get it by end of this year.
if there was a query i need to wait 1 to one and half year to get it clear.
during this period, i'll be out of job and my carrier is getting impacted.
So what kind of damages i can sue.
Raji,You cannot sue for losses in salary. They promised to help with your status but not that they would keep you hired or ensure you have a job. Therefore that is not an injury for which they are liable for. While you can sue them arguably for lost wages, your chance of success if very low because nowhere in the documentation that you provided it shows that the employer assured employment to you or assured earnings.Good luck.
As per my understanding, if there was query which is related to my documentation i can't ask for.
but query related to provided company documentation we have right to demand.
The company offer letter as follows (i changed company name from the below description)
This letter will summarize and confirm our offer of employment to join with Company, Inc. in the position of Validation Analyst at a biweekly salary of $2,884.62 ($75,000.12 annualized).Your start date will be as soon as practical once your H1B visa is successfullytransferred to company.This offer is contingent upon a favorable background check, the satisfactory completion of preemployment screening and drug testing, your compliance with the enclosed "Employee's Agreement Respecting Confidential Information, Competition and Trade Secrets", and the successful transfer of your H1B visa to Company. Under federal laws, you will be required to verify your eligibility to work in the United States; within your first three (3) days of employment,by completing an Employment Eligibility Verification Form (sample enclosed) and providing the required original supporting documents.Company will prepare and submit an H1B visa application to obtain employment authorization. If you prefer the premium processing option to expedite the adjudication of this application, youwill reimburse Company for the USCIS fee associated with the premium processing option.Once you are an employee, Company will initiate the process required to file an application forpermanent residence based upon employment using foreign labor certification.Company offers a full range of benefits for you and your qualified dependents. You will beeligible for most benefits on the first of the month following 90 days of employment. Asummary of available benefits is enclosed, and a detailed presentation of our benefits program will be provided during your new employment orientation. You will be eligible to earn 2 weeksof vacation during the year until you reach Company's eligibility requirement for 3 weeks of vacation at 5 years of service.As stated in all job offers, Company is an employment-at-will company. Employment may be terminated at any time with or without cause and/or notice by you or the company. This letter is a confirmation of employment only and is not a contract or commitment to continued employment.
Raji,Thank you for your follow-up. I read the information you provided, and nowhere in that offer letter do they promise to keep you employed while your application is being pursued. If it wasn't promised, and it wasn't implied (especially since the letter expressly designated you as an 'at-will' employee), you cannot sue them for damages, at least not successfully.I realize this is likely not the answer that you wanted to hear, but I owe you a duty to be as honest and forthright about your options. Please be well and kindly rate my answers to you at this time in a positive manner so I may obtain credit for my work. Thank you.
i understood i don't have any right to demand company because of 'at-will' clause.So what is the point of mentioning GC process as part of offer letter?
now i understood i got pitched off.
Raji,It may be considered an 'illusory promise' or a promise that cannot really be bound by the employer. Or it may be an attempt to show their obligations provided you remain employed. But this is just a guess on my part, I cannot tell you what the employer was thinking when they drafted that letter.Good luck.
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