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I have signed a 6 months of non-compete agreement with my

Customer Question
current employer. I got a...
I have signed a 6 months of non-compete agreement with my current employer. I got a job offer from a competitor who is ready to file my H-1B transfer right away. As an when i resign, my current employer is going to revoke my H-1B visa, and will enforce 6 months of Non-Compete during which i cannot work for a competitor. My current employer is going to pay some amount monthly for each month of non-compete period.
I wanted to find out If given my H-1B transfer application gets approved before I resign, will I go out of status during the 6 month non-compete period when i would be literally sitting at home in US without work? - Also, will this have any issues if i travel back to my home country (India) and come back before the joining date with a letter of recommendation from the new employer.
I read somewhere that LCA application has a time limit of 6 months. Does this mean Visa transfer done today is only applicable until 6 months from now?
What other complications do you think I can face if i move forward with the offer?
Visa: H-1B
Approved I-140 Application
Got my visa on 2010 December.
Submitted: 2 years ago.Category: Employment Law
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Answered in 55 minutes by:
8/19/2015
Employment Lawyer: Dimitry K., Esq., Attorney replied 2 years ago
Dimitry K., Esq.
Category: Employment Law
Satisfied Customers: 41,221
Experience: I provide employment and discrimination law advice in my own practice.
Verified

Thank you for your question. Please permit me to assist you with your concerns.

You asked:

I wanted to find out If given my H-1B transfer application gets approved before I resign, will I go out of status during the 6 month non-compete period when i would be literally sitting at home in US without work?

That depends on whether or not your employer agrees with your past employer to essentially 'buy out' the non-compete. If the current employer enforces it, you cannot work, and must remain at home until the non-compete is released.

- Also, will this have any issues if i travel back to my home country (India) and come back before the joining date with a letter of recommendation from the new employer. I read somewhere that LCA application has a time limit of 6 months. Does this mean Visa transfer done today is only applicable until 6 months from now?

It means that the Visa is only good for 6 months, and not for 6 months from now. It does mean that you can leave the country but so long as you return within 6 months, your Visa and your right to remain in the US would not be voided.

What other complications do you think I can face if i move forward with the offer?

The issue may be lack of working. An H1B is only granted to working employees, so if you sit at home and not work, the visa can be rescinded. As such, it makes sense to have your new employer negotiate a fee with the past employer about them releasing the non-compete outright, and permitting you to work once you leave this employer.

Sincerely,

Dimitry, Esq.

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Customer reply replied 2 years ago
Thanks. Non-Compete buy-out is not an option. Will I go out of status if I get my H-1b transferred over to new employer before I resign but i don't join them until the end of 6 month non-compete period. My current employer will enforce the non-compete, and revoke my H-1B - its non-negotiable. I heard a status called as "pending H-1B porting petition" - not sure if it applies here.
Employment Lawyer: Dimitry K., Esq., Attorney replied 2 years ago

Thank you for your follow-up.

Your H1B will go out of status if not utilized. But there is a bit of a bright spot. Typically an H1B transfer can take 3 to 4 months. During that time you obviously do not work. And then the employer can delay the H1B to start later, potentially after the 6 month period, and your right to work will be protected. This is something their immigration attorney who will be filing this for you will likely know, as he can actually try to slow down the process rather than expedite it.

Sincerely,

Dimitry, Esq.

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Dimitry K., Esq.
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