H-1B Versus At-Will Employment

Question:

We’re considering hiring an individual who needs sponsorship to work in the U.S. Do we need to be concerned that sponsoring an employee will alter the “at will” employment agreement?

Answer:

We asked immigration expert Christopher M. Pogue, Esq. with the Hammond Law Group, LLC to assist us with this question:

The holding in the case below re-affirms that sponsoring an H-1B employee alone does not change the nature of an employment agreement that is otherwise considered “at will.” The bottom line is that employer’s are not tying themselves to foreign national workers they employ simply by sponsoring the foreign national’s H-1B work visa.

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.

Our thanks to Christopher for providing a succinct response.

Don’t let immigration law worries keep you from hiring the most qualified individuals for your company. Sponsoring a foreign national worker can be easy with the right guidance. Let strategic HR, inc. help you navigate the employment law minefield. Visit our Compliance page for more information on how we can assist you with Human Resource compliance issues.

 

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