• Reg h1b filing

Hi Team,
 One Small IT Consulting Company has filed H1B for me, I had to pay 1 Lakh for this, there was no Bond/agreement Created by the Company on this Process like if Picked in Lottery need to Pay so much or else not picked in Lottery it will be ignored. My actual US MNC employer has now filed my L1 A. 

Since it got Picked in Lottery, this Small IT Consulting company is Threatening me to pay extra 3 Lakhs to clear this. Is it possible for this Small IT Consulting Company to Block my Passport or report it to USCIS or file a Case as per India Law. ? 

I have decided to go with my US MNC Employer since Paper work is all Clear, kindly suggest me on this. Thanks & appreciate a quick response.
Asked 4 years ago in Business Law

2 answers received in 30 minutes.

Lawyers are available now to answer your questions.

10 Answers

1. There is no question of blocking a passport by a individual or a company.

2. Even charging one lakh for lottery has no legal basis the company has committed wrong on this count. Sending an employee overseas for foreign assignment is the responsibility of the employer for which the employee can not be asked to bear the costs.

3. So Lodge a complaint with the labour commissioner against or seek refund and quit this company.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

No, this small company can not do anything with your passport number. Since you are not joining then seek refund the money or ignore this and continue with your existing job.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

H1B Employer-Employee Relationship Rule

How the rule affects H1B visa sponsorship and filing this year

The U.S. Citizenship and Immigration Services (USCIS) implemented a rule that has great significance and restricts some types of Companies from hiring and sponsoring H1B workers and filing H1B visas.

This rule is currently in effect, and will remain in effect for future years.

The rule primarily restricts a gencies and 'bodyshops' that: hire and file H1B visa petitions for their employees, and then sub-contract their employee(s) out on projects where the work is performed off-site at their clients offices.

The rule addresses and governs the existence of an ‘employer-employee relationship’ between an H1B-petitioning employer and the H1B worker - when the H1B employee's work is performed 'off-site'.

The new rule specifies how the USCIS will determine the existence of the required employer-employee relationship when processing H1B visa applications.

The USCIS processors are directed to weigh multiple factors when making the determination as to whether there is an employer-employee relationship. They must review whether the H1B employer (petitioner) directly supervises the H1B worker, and whether this supervision is performed on site or off site. If the work is performed offsite, then the method and frequency of supervision is taken into consideration. Another factor is whether the H1B employer has the right to control the H1B workers daily duties (if required). Other factors include whether the H1B employer provides the tools needed to perform the duties required, is responsible for evaluating the work performed, who provides employee benefits and claims the H1B worker for tax purposes, the use of proprietary information, and whether the end work product and result is directly linked to the H1B employers (petitioners) business. These are some of the main factors but there are eleven factors stated in the new rule / memorandum that the USCIS will take into close consideration, which are listed below.

• Example of a 'Valid' Employer-Employee Relationship:

The new rule provides examples of what constitutes a valid employer-employee relationship. The simplest example is where there is traditional, onsite employment (where the H1B worker is employed directly at the end-client work site). This direct employment typically involves daily contact, work at the employer's offices, and use of the employer's equipment.

• Example of a NON-Valid Employer Employee Relationship:

"Body Shop agencies / Sub-Contracting consulting firms" - Restricted from filing

The most important example for IT consulting situations is "job-shop" or "Sub-Contracting" business practices. The USCIS does not consider that there is a valid employer-employee relationship if the H1B employer (petitioner) contracts with other companies (end clients) and subcontracts the employee to the end client to fill their staffing needs. The H1B worker reports to a manager who is an employee of the end client company. The H1B worker gets work assignments from the manager in the end client company rather than agency that petitioned for the H1B visa and employs the H1B worker. The H1B employer (petitioner) does not control the work schedule, and there is no proprietary information regarding the petitioner that is used in the process. The end product is not related to the petitioner's business of IT consulting, and reviews are completed by the end client. The petitioner does not have the right of control and does not exercise control. Accordingly, there is no employer-employee relationship in this example.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

The small MNC can not impound your pass port and since you never entered into any written agreement they can not lodge a complaint against you.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You are free to go ahead and join US MNC employer.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Dear Client,

You are not bound to any of unwanted demands of SIT Com.

Neither that have any authority or any such understanding executed between u and com. that u may be forced to compensate for anything.

NO case, civil liability imposed on you, neither any body except passport authority have power to impound passport.

SIT co. is helpless and can`t do anything and any harm cause due to it, you are legible to get compensated by it.

Best of Luck.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You have never joined small IT company

2) you are working for MNC employer for last 5 years

3) you need not pay small IT company any money demanded by them

4) your passport cannot be blocked at request of the small it company

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

You are not an employee of small IT company

Said company cannot block your prospects of going to USA

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Since it got Picked in Lottery, this Small IT Consulting company is Threatening me to pay extra 3 Lakhs to clear this. Is it possible for this Small IT Consulting Company to Block my Passport or report it to USCIS or file a Case as per India Law. ?

In the absence of any such agreement with the consulting company, you need not pay any amount demanded by them.

They cannot make any complaint to US CIS or the local police on this because you have not done any crime nor you have breached any contract agreement

If they still threaten you then you may lodge a criminal complaint against them for extortion and threats posed by them including the crimes of intimidation etc.

I have decided to go with my US MNC Employer since Paper work is all Clear, kindly suggest me on this.

You can go ahead without getting frightened about their throats.

You can challenge them if they still indulge in such activities by first issuing them a legal notice instructing them to refrain from making such illegal demands and after that you can take proper legal action including police complaint.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

I have never joined this small IT Company. I am going to Continue with my Current US MNC Employer with whom I am there for last 5+ years. Will this Small IT Company create any issues or anything in Future using my PASSPORT Number with my L1-A Processing with USCIS ?...I hope not ?

They cannot do any such thing especially misusing your passport number held by them.

In such a cse you can report against them.

They will not indulge in cheap tactics because they have to survive in the market in their business.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer