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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 17217
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I am on H1B visa expiring on Dec2016. My company is going to

Customer Question

Hi, I am on H1B visa expiring on Dec2016. My company is going to file for an extension.
My company has filed for Green Card and my labor got approved along with expecting I-140 in a month or two.
I am working for California based Client having branch office at Texas where I operate from.
And I have joined my existing company in Texas two years back.Client has offered me for a full time employee opportunity which I am interested in but need help knowing the impact of Non-Disclosure,
Non-Solicitation and Invention Assignment Agreement(NDA) which I have already signed with my company.
Can you please guide me whether I can join my client and- My company will not able to sue me based on NDA signed.
- what would be the status for my I-140, does new employer has to file new I-140
- Or should I wait till my I-140 and my visa extension gets approve
- Or I should not seek this new opportunity as I will be in bad shape
Submitted: 6 months ago.
Category: Employment Law
Expert:  wallstreetfighter replied 6 months ago.

Unless you have a non compete, you can transfer you h1b to the new employer, be aware the new employer would have to file for an extension with the transfer, also he would have to file a new i-140 and perm for you to obtain the greencard

Expert:  wallstreetfighter replied 6 months ago.

If your old employer does not cancel the i-140 and it is approved, you can use that as evidence to obtain a post 6 year h1b extension as well,

Expert:  wallstreetfighter replied 6 months ago.

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Customer: replied 6 months ago.
I have signed NDA. Do you think if I joined client from California branch for a month and then come back to Texas would help me.
Customer: replied 6 months ago.
Do you think my current employer can sue me based on NDA that I have signed ?
Expert:  wallstreetfighter replied 6 months ago.

the nda is not a non compete agreement, they are very different,

Expert:  wallstreetfighter replied 6 months ago.

a nda is a non disclosure agreement prohibiting you from disclosing company secrets, and non compete prohibits you from working for a competitor.

Expert:  wallstreetfighter replied 6 months ago.

if you signed a non compete it is possible the employer can sue you for damages, and you would have to pay them to release you from the contract

Expert:  wallstreetfighter replied 6 months ago.

if satisfied with our service please provide us with positive feedback, thank you

Customer: replied 6 months ago.
Thanks for your reply. Sorry I think I am not clear with my question.
I have Non-Compete Agreement two of years back, that states this - You cannot be hired at "Clients" until 12 months after moving out of the client project. Is that even valid in Texas or California.If valid, what are the way around.
Expert:  wallstreetfighter replied 6 months ago.

It could be enforced, however any lawsuit would have to be in TX, as CA does not enforce such agreements. Without reviewing the entire agreement it is difficult to know for sure, however most IT non compete agreements can be enforced if reasonable.

To get around such non competes, in most cases you would have to pay something to the employer to release you from the terms, that is if they actually sue you for joining the client.

Customer: replied 6 months ago.
What if I join client in CA and come back in TX after first paycheck and I still could work from TX there after. So laws can not be enforced despite I had joined my current company in TX.
Or do I need to relocate to CA and my taxes should be filed from CA itself.
Expert:  wallstreetfighter replied 6 months ago.

you would need to live in ca to be sued in ca

Expert:  wallstreetfighter replied 6 months ago.

if satisfied with our service please provide us with positive feedback, thank you

Expert:  wallstreetfighter replied 6 months ago.

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Customer: replied 6 months ago.
Thanks for your quick responses and I am now clear with I140 / H1B Requirements. However I am a little bit still confused about the Non-Compete situation. I was hired by my current employer "Company A" in Texas and work for Client B from Texas location. My NDA (That contains Non-Compete clauses) was signed in TX only. I have received offer to join Client B on Full Time. Will I be able to avoid Non-Compete Legalities if I join Client B in their California location (on same role / position) instead of the current Texas Location as California has blanket ban on such Non-Competes?
Expert:  wallstreetfighter replied 6 months ago.

You have to read your non compete and see where the jurisdiction is, if it is TX, they will sue in Texas, if it states CA, they have to sue in CA.

Customer: replied 6 months ago.
Since I joined in TX their jurisdiction would be TX.. However the Non-Compete is pretty generic itself and may cover all states with some additional info about CA. If that were the case, am I safe from a lawsuit, should I join my client as full time in their CA Location. Will I be able to avoid lawsuit since youve mentioned that CA does not enforce such agreements. Pls help me clear this doubt.
Expert:  wallstreetfighter replied 6 months ago.

Yes, they can sue in TX, as the original contract was in TX.

If you work and live in CA, the fact the contract states TX, the courts will have jurisdiction.

This is the last answer on this question, please accept for more answers.

Customer: replied 6 months ago.
Well my friend asked similar question and he got an answer saying he can work from CA and won't be facing any jurisdiction because CA has got blanket ban on such Non-Competes.You may look into this.http://my.justanswer.com/question/guest/a5aa1980a8aa4134a6d6a7eb92ed62a4
Expert:  wallstreetfighter replied 6 months ago.

if the agreement was made in another state or includes a “choice-of-law” provision requiring that the agreement be construed under the laws of another state, the covenants at issue may be enforceable.

If you’d like to learn more about noncompete agreements in California, please see this Bona Law primer. In short, California law prohibits employers from enforcing restrictive covenants against employees, particularly covenants that take the form of a noncompete agreement. See Cal. Bus. & Prof. Code § 16600.

- See more at: http://www.businessjustice.com/is-my-out-of-state-noncompete-agreement-enforceable-in-californi.html#sthash.z51EXWh8.dpuf

Expert:  wallstreetfighter replied 6 months ago.

If you live an work in CA, the employer would sue you in TX based on the language of the contract not CA.