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H-1B Visa & Maintaining Status if you Take a Leave of Absence

New York, NY |

If I am on an H-1B Visa and take an unpaid leave of absence form my job for personal reasons (just to have some time off), will I still be in status? I plan to remain in the U.S. the entire time and go back to my employer once done. My employer will keep me on their payroll but I will not be paid.

Attorney Answers 3

Posted

Although, because it is at your request, it won't be 'benching' ... you still need to be careful.

Can other employees make this request? Is there a company policy as to when you're no longer on payroll if you stay 'off' for too long?

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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3 comments

Asker

Posted

Yes..others have taken unpaid leaves in the past..no policy saying you are no longer on payroll if you stay too long. The reasons for the leave are just I want time off though but this is pretty common in the place I work where people take 3 or 4 months off and then come back. Is there a USCIS regulation on this?

F. J. Capriotti III

F. J. Capriotti III

Posted

No clear regulation ... but 3-4 months seems a bit long. Talk to the company's lawyer.

Asker

Posted

Thank you very much!

Posted

Whether you can do that depends entirely on your employment contract. If that contrat provides that you are still employed, you are in status.

NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

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Posted

I would be careful under this scenario, since the law prohibits the "benching" of H-1B employees. Both you and your employer's immigration lawyer need to check an discuss this in private.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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