MattJR

Hi all,

I'm in a bit of a pickle at the moment and would love some opinions.

I'm currently working for Company A on an L1-A visa. I've been in the US working for this company since Sept 2006, and the current visa expires in Oct 2010.

I have an offer on the table from Company B, who are about to apply for an H-1B for me. However I know the quota is being fast used up (and there's no guarantee of being approved anyway), and if I miss out on the current round presumably I couldn't get an H-1B until October 2010 at the earliest.

Now, under normal circumstances I would wait for Company B's H1 to be approved (or not) before deciding to resign from Company A. HOWEVER, Company A has recently been acquired by Company C, and Company C are requiring me to sign a non-competition agreement as a condition of employment. If I sign this, I will be much less desirable to Company B, who I want to join. It's not a directly competitive business, but they are extremely cautious about potential litigation (even if the non-compete turned out to be non-enforceable, they would still have to pay a boatload of legal fees) and have indicated that if I sign the non-compete, the offer on the table from Company B would be significantly revised (downwards).

So, I would ideally like to hand in my notice to Company A/C now, but am concerned about the implications for immigration. Here are my main questions/assumptions to be validated:

- If I resign from Company A/C and immediately file an H-1B petition with Company B, I believe I will still be in legal status in the US, until that petition is resolved. Correct?

- If the H-1B petition is approved, I believe all is fine - I simply leave the US, obtain a new stamp and re-enter the US under the H-1B. Correct?

- If the H-1B petition is rejected or I don't get in under the quota cap, I believe the next chance for an H-1B would be October 2010. Correct?

- If that happens, would I have any options to work for Company B in the US until I got a new H-1B visa approved (e.g. under the VWP or a B-visa), or would I basically need to head back to the UK until I could get the H-1B?

All opinions welcome!

Thanks

henryh

Yes
I believe you don't need to leave the US. The employer submits your I-94 with the I-129 and if the petition is approved, your status is changed to H-1B. When you next leave the country, you must visit a consulate to obtain the stamp before re-entering.
Yes, with application in April 2010.
Not legally under the VWP or B-1. You can work for them remotely from the UK. Under certain limited circumstances a J-1 internship/traineeship might be possible. If you qualify, you could use an O-1.


Sounds like you're going to have to take a calculated gamble. Can you stall on the non-compete for two weeks and get company B to file the I-129 with premium processing? BTW, it is legal for you to pay the premium processing fee yourself.

md95065

I was in a similar situation a couple of years ago and was asked to sign a non-competition agreement. I objected on the grounds that it was unreasonable and I made it clear that since, as far as I could tell, it was completely unenforceable I also felt insulted by even having been asked to sign it. This led to a few feeble attempts to persuade me to sign it and, after a couple of weeks the matter was just dropped - I never signed it and nobody ever mentioned it again until I left the company a few years later when, at my exit interview I was asked whether I still had a copy of it because "they couldn't find it in my file" :-)

Sounds like you don't have much to lose by trying a similar approach - I assume that you are somewhat valuable to the company since, otherwise, they wouldn't even be bothering with the stupid agreement so it is highly unlikely that they will fire you on the spot for refusing to sign an agreement that they know (or should know) is pretty much worthless ...

MattJR

Thanks for the responses both. We've filed a premium H-1B petition with Company B, and I'm going to wait to see what happens there before making a decision to leave. Still stalling on the non-compete!