New Rochelle, NY asked in Contracts, Employment Law and Immigration Law for New York

Q: h1b: non compete: what happens to h1 state in garden leave.

I am on H1b and in 7th year of H1b (i140 approved, taking a long time due to country quota).

I have a non-compete of 1 year, where I can't join any competitor (current employer will pay me every month for 1year).

My employer says that NonCompetes are 'Post termination agreements' and thus they can revoke my H1b visa when I resign.

If I decide to change jobs, let's say my new employer first files for H1b Transfer and get it approved.

Now I resign from my current employer and they revoke my visa and ask me not to work for 1 year for the new employer.

Question1. Can I just wait for 1 year (while getting paid from ex-employer) since I already have my new H1B visa approved (transferred visa with new employer)?

Question2. Does it matter to USCIS that the new employer (who is now the sole sponsor of my H1b visa) is not paying me for 1 year (they can't pay me since I can't join them for 1 year)?

Let's assume the contract is enforceable.

1 Lawyer Answer
James Francis Barna
James Francis Barna
  • Cazenovia, NY
  • Licensed in New York

A: You are asking very fact specific questions that implicate both employment law and immigration law. The level of detail of your questions reminds me of a law school exam question.

Online forums by their very nature are only appropriate for general questions. More specific questions like yours require a lawyer's paid expertise.

You need to contact an immigration lawyer with employment law experience, or an employment lawyer with immigration experience. Don't risk online answers when your immigration status is at risk.

1 user found this answer helpful

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