What is the Impact on an H-1B Petition if an Employee Takes Paid or Unpaid Leave?

If you are in H-1B status and decide to take a leave of absence, you may wonder what happens to your visa status.  The impact on immigration status is dependent on the type of leave that an employee takes and can have immigration and Department of Labor (DOL) consequences.  Here is a summary of the potential impacts as they relate to the two different types of leave.

1.  Leave based on Family Medical Leave Act (FMLA)

United States Citizen and Immigration Service (USCIS) has confirmed that H-1B employees are entitled to the same leave as all other employees under the Family Medical Leave Act (FMLA), e.g. to take care of an ill relative, and/or under employer maternity or parental leave policies.  As such, an H-1B employee taking such leave would not violate his or her status provided that the employee does not take more leave than is usually allowed other employees.

To stay in status, you should ensure that you remain on payroll and it would be helpful to obtain a letter from the employer regarding the fact that the you remain employed but on leave.

2.  Leave of Absence for Other Reasons

The issues for this type of leave center around both Department of Labor (DOL) and USCIS concerns and requirements.

USCIS policy is generally dependent upon whether there is an expectation of continuing employment at the conclusion of the leave of absence. If there is, the employee is usually in valid status.  If there is no expectation of continuing employment, the employee is not in valid status during the leave period. USCIS policy places no time limit on the length of the leave but the longer the leave the more risk you run that you will be out of status.  Also, if you do not return to your employer, your risk of losing status increases significantly.

USCIS would also look to see if the employer has a policy of allowing employees to take that much unpaid vacation, and if the employer regularly permit leaves, this would be helpful.  Other indications of an employment relationship, such as you continue to get insurance through the employer, are also helpful to argue a maintenance of immigration status.

You should note though that immigration status as it relates to leaves is a grey area so you do run a risk of falling out of status if you take an unpaid leave. 

One way that may help you move to the first category (within FMLA), and as such more easily maintain status, would be to obtain a note from a doctor to show that your leave may be stress/medical related.  What qualifies as leave under the FMLA however is beyond the scope of this communication.

Unpaid leaves can also generate some DOL issues.  Specifically, if the leave is employer-generated, the rules set forth by the DOL would apply; and the employer would be required to pay full salary during the leave period.  Also, an employer may feel that the leave constitutes a “service interruption” which they have to report to the DOL.

Ian E. Scott is a Harvard Law School Graduate, lawyer and author of Law School Lowdown: Secrets of Success from the Application Process to Landing Your First Job. You can access the blog for this book by clicking here. Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and currently runs his own law firm Scott Legal, P.C. specializing in Immigration Law & New Business set-up.

For more practical or legal advice contact Scott Legal, P.C. We offer services in a number of business areas including, Immigration, New Business set up, Contract review and development and entrepreneurial support. Call 212-223-2964 or email info@legalservicesincorporated.com for a consultation.


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