Generally, an H-1B visa allows U.S. employers to temporarily employ foreign workers in various specialty occupations. If an employee who is working on an H-1B requires a leave of absence from their employment, and the employer approves the leave, the employee can still retain their H-1B. There are certain things to keep in mind to protect the H-1B status. The employee must show via annual paperwork that the employer-employee relationship continues throughout the entire validity period of the H-1B, including during a leave of absence.
It’s worth noting that taking a vacation pursuant to the employer’s typical vacation policy would not require an explanation to immigration services. This is especially true when the employee receives paid vacation time as that payment demonstrates the ongoing employee-employer relationship.
If an employee needs to take an unpaid leave of absence, for example, following the birth of a child or during a family or health crisis, the employee should request a letter from their employer stating they remain an employee. Ongoing written communications throughout the leave are also helpful, whether it be email, letters, or text messages. Keeping the employer up to date on the leave of absence can help demonstrate that the employee did not abandon their job in violation of the H-1B requirements. In the employee’s written communication, they should state their intention to return to work after the leave of absence. To the extent allowed by the employer, an employee should also continue to access and use workplace resources. For example, if allowed, an employee should continue to use their work email, insurance plan, or other benefits.
It is also a good idea to retain any documents relevant to the reasons behind the leave of absence, for example, related medical records. These do not need to be submitted unless immigration officials question the need for the leave of absence.
If you have any questions about taking a leave of absence from your H-1B employer, please do not hesitate to contact our office at 312-427-6163 or www.mmhpc.com.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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