Corporate Law Related Archives · Page 2 of 3

by Enoch Pei

What is H-1B?
H-1B is a nonimmigrantion visa classification that allows a foreign national to enter the United States to work for a period of up to six years. It is available to foreign nationals being offered employment in a specialty occupation (or as a fashion model of distinguished merit and ability).
How Do You Apply?
In seeking H-1B status, the employer must file an I-129 – Petition for a Nonimmigrant Worker – with the U.S. Citizenship and Immigration Services. Complementary instructions to help fill out the I-129 can be found here . But prior to filing the petition with the USCIS, the employer must obtain an ETA 9035 – Labor Condition Application for Nonimmigrant Workers – with the U.S. Department of Labor. Complementary instructions to complete the ETA 9035 can be found here.
(Other additional forms and documents may be necessary, depending on an individual case basis)

Do You Qualify?
In order to qualify for H-1B status, there are several requirements that need to be met.
There must be an employer-employee relationship with the petitioning U.S. employer
 This relationship is generally determined by whether the employer is in control of the H-1B worker’s hire, pay, and overall supervision
 An employer can be a person, firm, corporation, or other association or organization that engages with its employees’ work as mentioned above
The job of the H-1B worker must qualify as a specialty occupation
 Typically, a bachelor’s degree is the minimum requirement for the qualification of a specialty occupation
 Occupation of the H-1B worker must be related to the worker’s field of study.
 There are exceptions to those who do not have a bachelor’s degree
 These include specialized training or experience that is considered equivalent to the necessary degree required for occupation
The worker must be paid at least the actual or prevailing wage for the occupation, whichever being higher
 The actual wage is the wage that the employer is paying other individuals who are in the same position offered to the H-1B nonimmigrant
 The prevailing wage is based on a numerous of means that weigh occupation and geographic location of occupation

Other Considerations
Plan well in advance.
There is a 65,000 annual numerical limit of H-1B visas each fiscal year. Those with a master’s degree or higher are exempt from the cap, although there is a 20,000 petition limit for this exemption. If the USCIS receives more than 20,000 petitions requesting exemption, the USCIS will use a lottery process for random selection.
Cap numbers are filled very quickly, so it is in the best interest of applicants to plan in advance. U.S. government’s fiscal year starts on October 1st and H-1B petitions can be filed up to 6 months before the start date, which is generally April 1st for an October 1st start date.

Choice of law provisions in contracts are generally enforced by the courts. However, recent Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364 (2015) New York Appeals Court decision makes people think again. This case concerns an employment agreement that includes a Florida choice of law provision. It contains a non-solicitation provision prohibiting the employee for a two-year period following termination of her employment from soliciting, accepting or serving any person or entity that was an account or customer of the employer. Both the employer and the defendant employee in this case are in New York. Less than one month after being terminated, the defendant employee began working for a competitor of her prior employer. The plaintiffs commenced this action, alleging breaching of contract.

The Court compared the laws of New York and Florida with respect to restrictive covenant, finding that enforcing the covenant under Florida law would be against the against public policy.

Under Florida law, an employer only needs to make a prima facia showing that the restraint was necessary to protect a legitimate business interest, the burden shifts to the employee to establish that the restraint was overbroad or unnecessary. However in New York, the employer needs to show the restraint is reasonable that (1) it is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose und hardship on the employees, and (3) is not injurious to the public. A violation of any prong renders the covenant invalid. The employer must prove all three prongs before the burden shifts to the employee. Thus Florida law explicitly prohibits a court from considering the second prong. In addition, New York law requires convenience not to compete to be construed strictly, while Florida law construes such covenants in favor of protecting an employer’s interest and prohibits a court from construing the provision narrowly or against the drafter. Thus the Court of Appeals concluded that Florida law focused almost exclusively on the employer’s interest, rendering the Florida choice of law provision unenforceable.

现在的各个公司的雇佣合同中，都会要求雇员在解除雇佣关系几年内（一般是两年），不能从事与本公司相竞争的下一个工作。合同一般也会明确规定，如果发生诉讼和争执，以哪个州的法律为准。可是美国州与州的法律，在对待非竞争条款上有很大差别，不能完全根据合同的字面内容来理解合同的条款。

举例来说，纽约州和佛罗里达州对非竞争条款的执行就有很大的差别。纽约州的法律更保护雇员，而佛罗里达州的法律更偏向雇主。在佛罗里达州，雇主只需要证明非竞争条款是出于保护公司商业利益的需要就可以了，雇员要挑战这一条，则必须要证明该非竞争条款限制太宽和太不必要。而在纽约，雇主需要证明三大的方面，（1）该非竞争条款限制是为保护雇主合法商业利益；（2）该非竞争条款限制不会造成该雇员生活困难；（3）该非竞争条款限制不会损害公众利益。纽约法律也要求严格解释非竞争条款限制，而佛罗里达州法庭对非竞争条款限制解释就相对宽松。

一般来说，如果合同条款中指定按某州法律解释执行合同，接案法庭也不会有什么问题。但是在纽约和佛罗里达州对非竞争条款限制法律相差如此大的情况下，纽约上诉法院最近裁决，纽约法院如果执行按佛罗里达州法律解释合同条款的协议会违反公共政策。换尔言之，非竞争条款限制不可能在纽约州按佛罗里达州的法律执行，即使合约中规定该合同按佛罗里达州的法律执行，该条款也无效。详见Brown & Brown, Inc v. Johnson, 25 N.Y.3d 364 (2015).