Can Your H-1B Employee Legally Take a Leave of Absence?

As an employer, you know that there are times when employees want to or must take an unpaid leave of absence to deal with illness, give birth to a child, take care of ill or elderly family members, or perhaps simply take an extended, unpaid vacation for leisure or volunteer activities.

However, you also realize that maintaining H-1B status is important to some employee's ability to stay in the U.S. lawfully, and that your continued employment of H-1 employees is crucial to their status. Let's take a look at how to respond to an H-1B employee's request for a leave of absence.

Will the H-1B Employee's Leave Be Paid or Unpaid?

As the employer, you need to be thinking about the rules governing when you need to pay the H-1B worker's wages. The general rule under the Department of Labor's (DOL) regulations that govern the wage component of the H-1B visa is that you need to pay H-1B workers for the entire time you have them on the payroll, even if you "bench" them (in other words, place them in nonproductive status) where there is not a fee-generating project. The DOL's regulations require you to pay the worker's wages in that situation, because it was your decision, not the employee's, not to perform productive work.

The exception to the wage requirement is when it's the employee's decision not to work. In that situation, you might not need to pay the H-1B worker's wages. The DOL regulations provide several specific examples of when this applies, for example:

• touring the U.S.
• caring for an ill relative
• taking maternity leave, or
• recovering from an automobile crash that "temporarily incapacitates" the employee.

Other, comparable situations also might qualify.

The regulations caution that such a situation still could require the employer to pay the H-1B worker's wages. For example, if an employer benefit plan or a statute, such as the Family Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA), requires the employee to be paid, then you remain on the hook, subject of course to what the benefit plan or applicable statute provides.

Therefore, be sure to review any benefit plan documents and perhaps consult with labor counsel to determine whether a state or federal law requires you to continue to pay the H-1B worker who is on leave.

For Unpaid Leave: Help Ensure That Your Employee's Status Won't Be Questioned

You might want to make sure your employee receives any needed documents from you to help show that the employee is on an authorized, unpaid leave. These documents could include a letter from you confirming employment status and length of approved leave and relevant sections of your employee benefit plan.

It also is a good idea to encourage the employee to keep copies of any relevant records, such as a car crash report, child's birth certificate, or physician's statement explaining a medical condition and need for time away from work.

An employee who takes an extended leave to vacation abroad should keep copies of travel itineraries, plane tickets, and passport entry and exit stamps, so as to evidence the time abroad. This will document the leave and also allow you to "recapture" that time abroad when requesting an extension of the employee's H-1B status. As you're likely aware, H-1B status is limited to six years total, with some exceptions, but any time spent abroad stops the six-year clock from ticking.

How and When Your H-1B Employee Might Face Questions From U.S. Immigration Authorities

As a practical matter, you, the employer, are likely the one who will gather and assemble documents explaining your employee's leave, because you are the one to submit a petition to USCIS to extend the employee's status. One of the key requirements to extend the stay of H-1B workers from within the U.S. is to demonstrate that they have maintained lawful immigration status. The typical way to show this is through copies of paychecks.

As discussed in this article, employees who have been away on leave will need additional documents to explain discrepancies between their annual salary and amounts reflected on paychecks. Therefore, when you submit your H-1B petition, you'll want to be sure to account for any extended leave through a letter from you and medical records from the employee, if appropriate.

With a little planning, you can evaluate how an H-1B employee's leave of absence may impact your obligation to pay his or her wages and how to document maintenance of lawful immigration status. And when it comes time to extend the employee's H-1B status, you'll have everything you need.

Getting Legal Help

It might require seeking the advice of an experienced immigration attorney to determine whether your employee can maintain status when on leave, and to assist in applying for an extension. Many H-1B employers either have immigration attorneys on staff (if they're large companies) or hire them for this purpose.