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I am working as part of a company on US on L-1B visa since…

I am working as...

I am working as part of a company on US on L-1B visa since November 2014

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

New Jersey My L1-B visa was due to expire in Aug 2017, hence my US employer filed for L1 extension with USCIS Earlier this month, USCIS rejected the visa extension Post the rejection of extension, I have resigned from US company by giving a notice period of 3 weeks

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Its at will I have the signed copy of the code of ethics that clearly mentions that my employment is at will

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The problem is my US HR saying since I was transferred from India to US, my resignation should be governed by India company policies

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Answered in 5 minutes by:
12/27/2017
Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 112,453
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
Verified

Hello! My name is***** and I am a licensed attorney with more than 15 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help. Also, please do NOT click on the Opt Out button because if you do, it would prevent me from communicating with you and then it could take a long time before another expert responds to you.

Please give me a few minutes to review your question and I will be right with you with an answer. Sorry for any delay. I may have to do some research and at the same time I read and type fast, but not that fast! Thank you for your patience.

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Customer reply replied 4 months ago
Hi Guillermo,Thanks for the prompt response. Hope you have the necessary details about my query.

Sorry for the delay. I just ask that if the news is not good that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.

I'm not sure what you want to know. You understand that your L-1 status will terminate as soon as you leave employment?

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Customer reply replied 4 months ago
I understand that my L-1 status will terminate as soon as I leave the employment. My L-1B employment started in Aug-2014. I was switched to the US company's payroll in November 2014. Earlier this month, my L-1 extenstion was rejected by USCIS. Post the L-1 rejection, I have resigned from US Employer.I was based in New Jersey for the employment and my employment is at will. Since last 3 months I was working from India during US hours (while being on US Payroll). I have resigned from US employer and given a notice period of 3 weeks. My US HR is saying my resignation must be governed by my company in India.

Ok, but is your question an immigration question? And what is your worry?

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Customer reply replied 4 months ago
Our India to US Transfer policy document clearly mentions that once I move to the payroll of US company my separation should be governed by US company and US local laws. They are trying to force me to adhere to India separation policy which demands 3 months of notice period.

Ok. But if you are at will, what penalty do they think they can impose on you if you leave after 3 weeks?

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Customer reply replied 4 months ago
They are not asking for a penalty they are demanding a notice period of 3 months as per India policy

But that's the question, they are demanding, but so what? What if you don't comply and leave after 3 weeks? What can they do to you? What are you afraid of?

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Customer reply replied 4 months ago
I have worked with my company for over 14 years and I must get an employment certificate that mentions my date of joining and last day at work. The employment certificate is not a mandatory document in USA but one of the required document in India.
Customer reply replied 4 months ago
They might not issue me an experience letter which in-turn suggest my employment with current employment was not ended in graceful manner. That's the only thing I am worried of.

Ok, it seems to me that you may need to sue them if they don't issue the certificate. They are trying to strong-arm you into staying. What does HR tell you when you show them that the agreement specifically states that your separation is supposed to be governed by the U.S. company and U.S. local laws?

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Customer reply replied 4 months ago
I had a call few minutes back with US HR and reminded her about the Code of Ethics policy that was signed my me which clearly indicates that my employment is at will and both parties can terminate the employment with or without cause and with or without notice period. She is saying that doesn't apply to me as I come to US for an assignment and my employment is governed by India company.
Customer reply replied 4 months ago
US HR is just directing me to India HR. Ideally I expected the US HR to take a stand in this case
Customer reply replied 4 months ago
Received an response from US HR stating "India HR will come back to me with a response. This needs to be managed and closed by the India HR team"
Customer reply replied 4 months ago
We are disucssing this topic since last 3 weeks with no conclusion

The problem is that U.S. immigration will not get involved with that. If you believe that you are correct and you have the evidence to back it up, leave after three weeks and if they do not issue you the certificate that you need, then you may have to sue them to get it. If you need it from the U.S. company, you most likely will have to sue in the U.S. If you need it from the Indian company, that becomes a little more complicated. Often with employment disputes, a law suit is what is sometimes needed to force companies to comply. Unless you can clearly show that they will lose in court and waste lots of money litigating it, there really is no way to force them unless you sue. Also, sometimes companies do things contrary to policy because they want to make a statement to other employees to not mess with them. I would approach whomever is in charge of U.S. HR with your evidence. You may have to take it higher up, or as I said, you may have to sue them. At the end, that's what it may come down to if they don't want to issue you the document. I wish I had an easier solution for you, but you seem to have the proper evidence to make your case, but unless you threaten to sue or actually sue them, they may decide not to comply because perhaps even though they are wrong, it is not in their best interest to let you go.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, you may have to scroll up to the top of the page or click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 112,453
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
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Guillermo Senmartin and 87 other Immigration Law Specialists are ready to help you
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Thank you for the positive rating. If you would like to request me in the future for a different topic, please remember to put FOR GUILLERMO in the subject line and message box. Good luck to you!

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Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 112,453
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Experience: Principal Attorney at Guillermo J. Senmartin, P.A.

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