LonelyCloud

For the history look for the other threads.

My soon to be ex employer is refusing to waive a part of the non compete for the new employer (I suspect is a "we don't want him anymore, but we don't want anyone else using him either") even through the businesses are completely different.

Anyway, whilst they argue, the end of my contract approaches, OCT 31 and thus the end of my L1A. The plan was (is) to apply for a COS to an O-1, but that has been put on hold until they sort the compete out.

There is an immigration lawyer involved with the COS, so why is no one else worried about the approaching date? If they sort it all out we still need to get the "expert" letter, which 'can' take a week.

Am I missing something? I know gaps in employment tend to cause problems, not to mention the fact I am supposed to leave as soon as possible.

Orangepants

My OH did a COS from H-1B to B-2 whilst he was preparing his O-1 petition. His contract finished Dec 31 and he filed COS around 3 weeks later. Our lawyer didn't think the 3/4 week gap would be an issue. The COS was approved for 6 months, approx 4 months after it was submitted.

scrubbedexpat099

None of the other parties are effected to much extent as to whether this works or not.

LonelyCloud

I appreciate it matters little to them, I'm just concerned that I'll be hanging around longer than I should which may raise questions later down the line should it be successful or if I want to come back to the US for a vacation etc

scrubbedexpat099

I was just answering your question.

That would also concern me.

LonelyCloud

Fair comment

Orangepants

Hubs had had three O-1s since and now applying for permanent residency and cleared for Global Entry so there's nothing on his record about overstaying.

The original petitioner of the H-1B didn't let USCIS know that hubs was no longer working for them til later in February - not sure if this has any bearing on the recorded dates.

LonelyCloud

I'm guessing it probably did.

Looking at how many blocks my employer is putting in place for the potential employer I wouldn't be surprised if they were straight on the phone at 9am next Tuesday...

hungryhorace

**** the non compete. Which state is this in? Would your ex employer bother to follow through with the litigation associated with a non compete? Either way, non competes are an outrage. **** them, and **** firms who use them.

LonelyCloud

Oregon and DC

I'm not putting anything past them at the moment. The new employer sort of shares your view (as do I) but I have no idea if they will actually follow through with just saying **** them

steveq

Isn't the enforceability of non-competes highly debatable anyway ?

zenjabba

DC is "at will" and non-compete's have a specific requirement in DC
„

• The restraint on trade is reasonable.
• The restraint is only what is necessary to protect the employer’s business interest.
• „The agreement does not go against public policy

Basically, for DC I wouldn't worry about it.

*update* http://www.schnader.com/files/Public...108)%20(4).pdf

tht

It depends, I am in finance and they are enforced and can be 6-12 months, but only if they are paid. The issue is 2 fold, a new employer dos not want an employee being sued, less so in the US, but the UK regulatory regime includes a "Fit and Proper" test for registered individuals and I have received letters from the previous employer of new hires to advise that they will complain to the regulator if we let an employee start before the their non compete is expired. I am subject to one as well and think of them as an extended paid vacation....

LonelyCloud

It would appear that mine is 2 years and they claim it is enforceable globally, but they get to pick and choose when they enforce it or not (basically, we won't enforce it as long as you don't try to work in the US).

tht

I actually just had a lawyer review one for a prospective employe and they said that ones where the employer have options are the most likely to be seen as overly restrictive by courts

As to Global thats a stretch, even different states have different views. In the real world it is more the treat by an employer of suing that deters people from breaching them anyway.

Main questions to determine is if is yours paid, and what law is it governed by? and are you looking to work in that same jurisdiction, have they enforced against others?