On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic. In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid. Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1b. The Third Circuit rejected this argument. It noted that “sponsorship of an H-1b visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.” Thus, an organization that sponsors an employee for an H-1b does not have a duty to employ the beneficiary throughout the duration of the H-1b validity period. Dr. Edwards other arguments also failed and the Third Circuit dismissed this appeal. The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial. The Hammond Law Group is always happy to help explore this topic.
On December 20, 2011, the Administrative Review Board (“ARB”) of the Department of Labor decided In Matter of University of Miami . In this case, the University of Miami submitted a petition for a H-1b worker who would perform as a clinical anesthesiologist. When the doctor arrived in the United States, the University of Miami told her that she must obtain a social security card before beginning employment. The doctor received the social security card and informed the University that she was ready to begin working. Due to issues regarding the offered position, the doctor’s employment was terminated. However, U.S. Citizenship & Immigration Services (“USCIS”) was not notified for more than four months. The ARB determined that the time that the doctor spent trying to obtain a social security card was involuntary non-productive time. Consequently, the University was ordered to pay backpay for this period. In addition, the ARB stated that the doctor’s termination only became effective on the date that USCIS was notified. Thus, the University was also liable for backpay from the date of actual termination until the date that USCIS received notification. This case should remind all employers that they risk being held liable for backpay if they create requirements that an H-1b worker must fulfill before starting work and if they fail to alert USCIS to a H-1b worker’s termination. If you have any questions regarding these types of issues, please contact the Hammond Law Group.
Many people are wondering what caused the H-1b cap to be reached so much more quickly this year. Information that the cap would be met in November, two and a half months earlier than past years, caused many employers to scramble to submit petitions. At the Hammond Law Group, we believe that there are several reasons why the cap was reached at an earlier date. Perhaps most obviously, IT industry groups, such as TechServe Alliance, have noted consistent increases in hiring throughout this year. As a result, many IT organizations submitted an increased number of H-1b petitions this year for foreign workers who they hoped would fill these positions. In addition, the U.S. Consulates in India are denying a large amount of the L-1 visas. By decreasing the amount of L-1 visas available to Indian personnel, many organizations have resorted to using the H-1b visa to ensure that their personnel are able to enter the United States and work. Finally, Department of Homeland Security Secretary Napolitano and U.S. Citizenship and Immigration Services Director Mayorkas announced on August 2, 2011 that foreign entrepreneurs could use non-immigrant and immigrant visas to obtain status in the United States. It is possible that a number of H-1b visas were absorbed by foreign entrepreneurs. While all of these reasons likely contributed to the quick rate at which the H-1b visas were used up, we believe that the high rate of denials of the L-1 visa at U.S. Consulates in India and the increased hiring occurring in the IT industry caused the cap to be reached at an earlier date.