How Taking an Approved Leave Affects Your H-1B Employment

Rules for H-1B workers who need to take an unpaid leave of absence of a sort that an employer normally would grant to any employee (in fact, might be legally required to grant), such as maternity leave or for an extended illness,

By , J.D.

They say that "life happens," and that's no less true for an H-1B worker. Having children, taking care of an ill relative, or dealing with recovery from your own illness can all require taking a leave of weeks or months from work. Or, you might simply want to take some time off for an extended vacation or other non-work pursuits. As an H-1B worker, however, you face important considerations regarding the legality of your immigration status in the United States, as discussed in this article.

As background, the H-1B visa is a work visa. At a basic level, this means that while you, as an H-1B worker, are in the U.S., you need to be not only working for your sponsoring employer, but also getting paid by that employer to maintain lawful immigration status.

But what happens if you need to take an unpaid leave of absence of a sort that an employer normally would grant to any employee (in fact, might be legally required to grant), such as maternity leave or for an extended illness? What are the rules for you?

(For further guidance, see Nolo's many articles concerning life on the H-1B visa.)

How an H-1B Employee May Maintain Lawful Immigration Status During Leave

The typical means to document that you are in lawful H-1B status is through paychecks, which show that you are working and getting paid. As you are likely aware, maintaining lawful H-1B status is important not just theoretically, but it is vital if you want to be able to change employers or extend your stay while remaining in the United States. If your H-1B status lapses, you might need to leave the U.S., obtain a new H-1B visa at the U.S. consulate abroad, and return before you again will have lawful H-1B status.

The usual one- or two-week vacation does not require any special documentation to explain or evidence a gap in employment. Many vacations are paid in any case, so the issue might never come up.

If you have exhausted your paid vacation and are fortunate enough to have your employer grant additional, unpaid vacation time, it would be a good idea to obtain something in writing that confirms your approved time off and that it will be unpaid. Such a letter will explain any lesser amount on a paycheck or year-end W-2 wage report.

Also, you will want to maintain any other possible elements of the employer-employee relationship, such as continuing to utilize an employer-provided insurance plan, if possible. It is also helpful if your employer has a policy of allowing all employees to take such unpaid leave.

For prolonged, unpaid absences, be ready to explain and document your situation when it comes time for your current employer or another employer to submit a petition requesting an extension of your H-1B status. It's therefore wise to prepare a folder of relevant documents explaining why you were not working. They might include the employer letter mentioned above, medical records for yourself or a relative, birth certificates for newborn children, relevant sections of your employer's employee benefit plan, or other, similar documents.

U.S. Citizenship and Immigration Services (USCIS) has confirmed that H-1B workers on approved leaves of absence continue to maintain lawful status, and a letter from the employer stating that the H-1B worker remains an employee but is on leave would be acceptable documentation to prove such continued status. It still is a good idea to have medical records or other documents available to provide additional support for your employer's statement.

You'll do yourself a favor by gathering the relevant documents around the time of the event (such as an illness or birth), in case USCIS asks for additional materials when it reviews an H-1B petition that your employer files on your behalf. You might find it more difficult to backtrack and get documents at a later time. This extra step will pay off in the long run and help your employer respond to a so-called "Request for Evidence" or "RFE," which USCIS might send as a follow-up to the H-1B petition.

What About a Taking a Break From Your H-1B Work for Another Reason?

As can be seen from the above examples, the leave of absence issue most often arises in the context of a health issue or a longer vacation. Another situation could involve what slowly is becoming recognized or described as the work sabbatical. Some employers allow employees to take a prolonged leave (several months or more) to pursue a personal or career goal. It might be anything from hiking the Appalachian Trail to obtaining an advanced degree.

Taking Leave Outside of the United States

Here again, as an H-1B worker, you need to do some extra planning if you're considering some type of sabbatical. If the time away from work will be outside the United States, you don't need to worry about maintaining status, because you won't be here. Rather, you'll simply want to document your departure with copies of travel itineraries, plane tickets, and passport entry/exit stamps. Any time you spend outside the U.S. can be "recaptured" and added to the otherwise applicable six-year maximum stay in H-1B status.

Taking Leave in the United States

If you will be remaining in the United States, it could be a bit more challenging. There is no clear guidance on whether you could maintain lawful H-1B status during a prolonged absence from work, even if your employer approved it and it is a benefit offered to all employees. As mentioned above, the H-1B visa is a work visa and is not meant for sabbaticals. The challenge could arise when your employer files the next H-1B petition. USCIS could determine that you did not maintain H-1B status and therefore deny the request to extend your status. It then most likely would be an uphill battle to get back into lawful H-1B status.

In theory, it might be possible to apply to USCIS to change to B-2 visitor status, for example if you wanted to hike the Appalachian Trail as a tourist. In practice, however, it's unclear at best how USCIS would view such an application. Depending upon the length of the leave and your financial reserves, USCIS could deny the change of status application out of concern that you won't be able to support yourself. Also, the change of status application can take several months to process. If you're out on the trail with no mail or Internet access, USCIS might send a request for evidence (RFE) or denial, and you'd have no way of knowing about it.

Therefore, if a sabbatical is in your plans, it might be best to look abroad. You avoid the uncertainty of maintaining immigration status. You also are not using up your six years of H-1B eligibility.

Although life can and does happen to everyone, there are rules in place that provide guidance for H-1B workers. If you perform some due diligence, you can navigate the rules and prepare any required documentation. And regardless of the joy or frustration the life event causes, at least your H-1B status will neither mitigate nor aggravate the situation.

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