The New Law and Your Existing Employment Agreement

Hi, Guys! I'm on my way to New York City and I just read an interesting article reflecting corporate concerns over the new law and why a lot of employers are worried. Ultimately, the author comes to the conclusion same conclusion that I've said all along: the only employers who need to be worried are the body shops and scammers, which will no longer be able to use blackmail as a way of keeping you benched.

Some important thoughts before you scamper off and read the article: you will read a quote from a guy named Anuradha in D.C., and he essentially says that he takes the new law to mean that he is free to bail from his contract. THE NEW LAW HAS NO IMPACT WHATSOEVER ON PRE-EXISTING EMPLOYMENT AGREEMENTS! I am VERY concerned about a lot of the questions rolling in, and folks are somehow concluding that the new law effectively preempts any employment agreements already in place. It does not do that! A few facts on this subject:

An employment contract, if lawfully executed and legal in your state, is legal valid for the term agreed upon unless both parties agree to terminate the agreement OR you challenge the agreement in court. U.S. workers, as well as foreign workers, REGULARLY are asked to sign non-compete and fixed-term agreements, and, provided benching is not an issue (since it is a violation of H-1B rules to bench without pay), these agreements are proper and useful tools for both parties: the employer can invest in the immigration processing of the worker with assurance that the person won't skip out on them and the employee is assured of a lasting, bona fide job offer.

If either party breaches the contract, the other side has LEGAL REMEDIES, including reimbursement agreements and, when appropriate, damages. DO NOT BELIEVE THAT THE NEW LAW INSULATES YOU FROM YOUR EXISTING CONTRACT. It does not. If you have an existing agreement and want out, before you do ANYTHING (including starting discussions with your employer, who may freak out on you), see an experienced Employment Law attorney in your state. Remember, the law varies from state to state and a California attorney cannot help you with a Florida contract, or vice versa!

As you know, we are NOT employment law experts. In the spring, I am launching an ambitious project to get you guys the help you need, particularly because most labor law firms around are employer-geared. That means most of these firms represent mostly employers, and won't be coming from an employee-angle. I am starting, via usvisanews.com and Paradise Online, an informal referral network of attorneys nationwide who practice in areas other than immigration law. To be in the network, the attorney will:

Sign a "TLC" (Tender Loving Care) agreement where they promise me that in handling your cases for whatever it is, they will give you the same level of responsiveness and courtesy you are used to from Jose E. Latour and Associates. This includes a ONE BUSINESS DAY promise of returning email and phone calls. You guys will be the enforcers and if you come back and tell me they are not keeping their promise to me, then we will no longer associate with them.

Provide evidence of malpractice insurance to make sure that if they mess up, you are protected.

Provide a letter from their respective state bar association saying that they are members in good standing and that they have not been sanctioned for conduct.

Naturally, when you guys use our free service, I will be having you sign a couple of million statements to the effect that I have done my best to list only reliable attorneys but that we are not responsible for your attorney-client relationship with that attorney. How do I know attorneys nationwide will jump on the bandwagon? Because we are now the biggest thing online as far as immigration is concerned. We're a virtual funnel of Grade A super-star clients like you! (-:

One last question you may have thought of: "Given the fact that the majority of your business comes from corporate employers, Jose, how can you take this angle...won't they get mad at you?"

I wish you could see the SMILES on the faces of our corporate big-shot clients...I am teaching them how the new law will mean nothing but growth and opportunity for them. The VAST majority of our foreign readers just want a fair shake from the U.S. employer and honorable relationship. A FEW are job-hoppers totally devoid of any personal or business ethics, and you guys have seen me blast them here many a time (what was AWESOME in last week's chat was when a couple of folks started hassling a guy who was accepting numerous jobs in conflict with each other...I LOL (Laughed Out Loud - I'm learning chat lingo)! Here's the deal with the new law: for the GOOD guys -- reputable employers like my clients (and I fire 'em if they're not reputable) -- this is nothing new. They've BEEN playing by the rules, as have the foreign workers who keep their word and honored their agreements. Sure, they'll squabble about bonuses and the like, but the stability of the relationship is never in question given that EACH has DISTINCT AND MEASURABLE BENEFITS AND A MUTUALLY BENEFICIAL RELATIONSHIP.

For the BAD guys, it's another story. The body shops and ripoff artists are scurrying off like rats in the night under the glare of the bright light of the new law, and I must confess that I am having perhaps a little more fun than I should watching them squirm. I would share some of the riper emails I get with you guys but these folks are VERY litigious and I have enough action in my life. Guys, they are SCARED. And while I don't think the true measure of the impact will be fully realized until the INS gives us the regulations we've been promised by the end of the year (Jose in breath-holding-mode), I have absolutely now doubt that it will be easier than ever to review a résumé during pre-hire and tell my client: "this one is bad news."

So, the moral, my friends, is do unto others as you would have them do unto you!

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