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ASK VISALAW.COM
By Marc Topoleski, Partner in Siskind, Susser, Haas & Devine’s Detroit-area Office   
I am working for an employer on an H-1B visa.  If I leave my employer before my contract ends, my contract states that I must pay my employer a large sum of money.  Is this legal? 
One of the biggest complaints by H-1B employees, particularly those in the high tech sectors, is the inclusion of onerous contract provisions that severely penalize an employee for leaving an employer prior to the end of the contract. The DOL has addressed this issue in its recent regulations. A penalty paid by the H-1B worker for quitting prior to an agreed date is prohibited under the rules. An employer is, however, allowed to receive “bona fide” liquidated damages from the worker if they quit early. Applicable state law determines whether a deduction is a penalty or liquidated damages. However, in general, penalties are amounts that are not reasonable approximations or estimates of damage.  The 00 worker retraining fee paid by the employer as part of the H-1B filing process can never be included in any liquidated damages received by the employer. 
Interestingly, a California court recently heard a case on this issue and found that under California law a penalty provision found in an IT consulting company's contract was void and unenforceable.  See the April 6, 2001 issue of Siskind's Immigration Bulletin (http://www.visalaw.com/01apr1/) for more detailed coverage of this case.   
  
I am a management consultant working in the US on a TN (NAFTA) visa.  How many times can I renew my visa? 
By law, a TN visa is granted for a period of one year, but can be extended for additional one-year periods an unlimited number of times.  Generally, because the TN visa is a temporary visa, multiple extensions may call into question your temporary status.  However, this issue is of particular importance for individuals entering the US in the management consultant category under NAFTA.  By the definition provided in NAFTA regulations, a management consultant is someone who is not supposed to be assuming an existing position or filling a newly created position, but rather are supposed to be filling "supernumerary temporary positions."  Although there is no formal rule, the INS will usually apply a high level of scrutiny to management consultants attempting to renew a TN visa more than once.  To overcome this scrutiny, the management consultant needs to show that the assignment continues to be temporary in nature and still meets with the other requirements of the management consultant definition. 
  
What are the pros and cons of using a Visa Waiver under the Visa Waiver Permanent Program? 
The Visa Waiver Permanent Program permits a waiver of the nonimmigrant B-1 and B-2 visa requirements for individuals from certain countries, allowing them to enter the US without a visa as nonimmigrant visitors for a period of 90 days or less.  Despite this major advantage of a streamlined entry process, VWPP entrants may not change or extend their status (except in an emergency, where a one-time 30 day extension may be granted), and potential VWPP entrants are subject to being denied admission summarily without having any right to administrative or judicial review.  Also, with the exception of immediate relatives, VWPP entrants cannot adjust status.  
Before you decide to use a visa waiver, you should be sure to carefully consider the impact on using the waiver on you current and future immigration plans.