By Brianne Donovan, Immigration Lawyer

Just as a U.S. worker can take a leave of absence, H-1B employees are allowed time off work without jeopardizing their immigration status. Unfortunately, life happens, regardless of your immigration status. It may be necessary to step away from your job to deal with health issues, family issues, or any number of reasons not related to employment.

What documentation should the employer maintain?

First, an employee should request leave in writing. Employers should keep written requests on file in case an immigration officer or DOL official were to inquire about the time off in the future. While H-1B employees are allowed time off, USCIS or other agencies may ask about gaps in employment (especially, those that are not paid), such as through a Request for Evidence (RFE). By documenting the leave, the employer can provide clear evidence for why the employee was not working.

Moreover, H-1B employees are allowed leave that U.S. employees are entitled to. Employers and employees, however, are not allowed to schedule time off for reasons related to immigration status (e.g., not being able to pay an employee the required wage listed on the Labor Conditions Application (LCA)). Therefore, it is important to document the employer’s standard leave policy, such as though an employee handbook. A clearly documented, consistent leave policy can be helpful documentation both for employees, and for a situation in which USCIS may ask about an H-1B employee’s leave.

To supplement the documentation, an employer may also want to write a letter to the employee stating the time of leave and that the employee remains employed with the company.

Does the employer have to pay the H-1B employee during their leave of absence?

According to federal law, “[i]f an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period.”[1]

This means if an H-1B employee takes leave, the employer may not be required to pay them under the H-1B regulations. However, an employer should always check with legal counsel to ensure another state or federal regulation doesn’t dictate payment. For example, an employer may not have to pay an employee under immigration regulations but could be legally entitled to pay them under the Family and Medical Leave Act (FMLA). In addition, even in the immigration context, the answer is fact-specific.

Can an H-1B employee take leave for a reason related to their H-1B status?

An H-1B employee may take leave for any reason permitted for U.S. workers. However, an H-1B employer may not take leave to get around H-1B regulations. For example, if an employer is unable to pay an employee the required wage dictated by the Labor Certification Application (LCA), they may not coordinate with an employee to take unpaid time off. Additionally, employers may not force time off on their employees, either.

How long may an H-1B employee take off without being out of status?

H-1B employees may take off as much time as U.S. employees are permitted.

Can an H-1B employee take a leave of absence for other reasons, such as wanting to travel?

Yes, the federal code states that “touring the U.S.” is a valid reason for taking off time. [2]

Please note that this is not legal advice as each person’s immigration circumstances differ. If you are taking leave or considering taking leave, it is important to speak with a qualified immigration attorney to ensure you’re complying with federal regulations.

[1] 20 CFR 655.731(c)(7)(ii).

[2] 20 CFR 655.731(c)(7)(ii).