By: Robert S. Groban, Jr. and Matthew S. Groban
On June 28, 2013, a District of Columbia restaurant sued its former executive chef to recover the expenses incurred to secure his H-1B visa. See Rasika West End LLC v. Tyagi, No. 13-0004426 (D.C. Super. Ct. filedJune 28, 2013). According to the complaint, the employer entered into a thirty-six (36) month contract with the H-1B employee, and claimed that it would take that long to recover, among other things, funds spent to secure the approved H-1B petition the employee needed to assume the position. The complaint further alleges that the restaurant was entitled to recover these expenses because the contract required the employee to pay them if he voluntarily left the employment before thirty-six (36) months elapsed.
The U.S. Department of Labor regulations do not permit an H-1B employer to require a prospective employee to pay these H-1B expenses at the outset. These regulations appear to permit sponsoring employers to recoup these expenses as “liquidated” damages if the sponsored employee fails to live up to his or her employment commitment. The area is a complex one, however, so employers contemplating this type of recoupment need to consult experienced immigration counsel to be sure that the provisions they prepare are enforceable and do not adversely affect either the employment or H-1B relationship.