Yes, a noncitizen lawfully working in the U.S. on an H-1B visa CAN go on an unpaid leave of absence from work. However, certain steps should be taken to ensure that one’s H-1B status is not jeopardized. The key is to ensure that the H-1B visa holder has sufficient documentation to demonstrate that the employer-employee relationship continued throughout the entirety of the visa period (including any period of long-term leave of absence).
It is useful to remember that every H-1B worker and their employer must annually file paperwork with the immigration services documenting the work and payment. Any significant "gaps" in the work and/or payment will require explanation.
What is a "Leave of Absence"?
Generally, there is no need to worry about "normal" vacation time, particularly if the vacation time is something that your employer gives to all employees (regardless of visa status). Thus, vacations that are one to two weeks are not typically a "problem" requiring an explanation to the immigration services. Further, PAID vacations are typically not a "problem" since the continued payment is "proof" that the employer-employee relationship is ongoing.
Thus, only extended unpaid leaves of absences need to be explained. There are many good reasons that an H-1B employee might need an extended absence including the birth or adoption of a child or time needed for family or personal medical care.
What Should I Do if I Need a Leave of Absence but Need to Maintain My H-1B Visa?
As noted, the key is to have documentation that shows a continued employer-employee relationship. In simple terms, you need a letter from your employer that says that you are still an employee while you are on your leave of absence. For family and medical leaves of absence, your employer is often required, by statute, to provide you with such a letter.
It is also important to have other documents that can help demonstrate your continued role as an employee and your intent to return to work. Thus, aside from obtaining a letter from your employer, it is recommended that you also take the following steps:
- Write several communications -- emails, letters, text messages -- to your employer during your leave of absence keeping your employer up-to-date on your leave -- these communications can demonstrate (if necessary) to immigration officials that you did NOT abandon your job and that, at all times, you intended to return to work; further, if your employer responds, then that is further proof that your EMPLOYER believes that the employer-employee relationship is a continuing one
- Use employer-provided resources (if allowable) during your leave -- examples include continuing to access and use employer-provided email services (if allowable), continuing to use an employer-provided insurance plan, continuing to pay the monthly payments (if any) for an employer-provided insurance plan, etc. -- continuing to use your employer's resources (as allowed) is another way to demonstrate the continuation of the employer-employee relationship.
- Keep documents with respect to the reason for your leave of absence -- like medical records or billing invoices -- this sort of documentation can demonstrate (if necessary) to immigration officials that the leave was for legitimate reasons and that you were NOT abandoning your job
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.