H-1B Employees are entitled to any leave that would be permitted for anyone else who holds the same job title as the H-1B employee. You will be maintaining H-1B status provided you only take leave for the time permitted by HR. Be sure to forward documentation from HR regarding your planned leave to ISSS so that we may add it into your file.
(ii) Circumstances where wages need not be paid. If 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, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.). Payment need not be made if there has been a bona fide termination of the employment relationship. DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)).
To satisfy the rule, the nonproductive status must meet each of the following conditions:
- Be due to conditions unrelated to employment;
- Be either:
- "At the employee's 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)"
- Not be subject to payment under the employer's benefit plan or statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act (i.e., this "no-benching" exception does not affect obligations to pay that arise under the employer's benefits plan or other laws).
Even though payment of wages might not be required in certain circumstances for LCA purposes, the underlying circumstances may still impact the alien's immigration status. In an INS-AILA liaison meeting, for example, INS said that H-1B employees are entitled to the same leave as other employees under the Family Leave Act or internal employer maternity or parental leave policies, and that an H-1B employee taking such leave would not violate his or her status, provided that he or she does not take more leave than is usually allowed other employees. INS told AILA that in an H to H transfer case "a letter from the employer regarding the fact that the individual remains employed but is on maternity or parental leave would be considered sufficient" evidence to show that the individual was still employed, but on authorized leave.