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  • H-1B taking leave of absence question!

    #1
    Hi Ron,

    I am wondering whether there is any length restriction on a H-1B visa worker taking leave of absence from work.

    I plan to take one year leave of absence from my work for personal reason and my employer is fine with keeping my H1B sponsorship during this period. My I-140 has been submitted and my current H-1B is valid till 2013. Can you advise whether I can take a year off under this situation? Thanks
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  • #2
    Re: H-1B taking leave of absence question!

    You may take a leave of absence and return later as an H1B, but if you plan to stay in the U.S. during that time, you are going to have a problem. Unless the leave request is necessitated by unusual circumstances, such as pregnancy or the need for medical treatment, you are likely to be considered out of status if you take that much time off. If you go abroad during the one year, that is absolutely no problem.
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    • #3
      Re: H-1B taking leave of absence question!

      Ron - I am in a similar situation. I am an Assistant Professor at a well known University and would like to take one year leave of absence to work on my research. However, if I go out of country then I will have to take a new H1B visa stamp as my current one has expired. Would it be a problem to get the visa stamp and to travel in and out of country when I am on leave of absence? My current H1B is valid until 2012.
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      • #4
        Re: H-1B taking leave of absence question!

        You should consult with counsel before you do anything. These types of cases really turn on the unique facts involved. The problem with remaining in H status when not working, or entering using an H visa when you don't intend to work is that your purpose in each case is inconsistent with maintenance of lawful H status. If you are going to go abroad and just come back for visits during the year off, you should get a B visa for those trips.
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        • #5
          Re: H-1B taking leave of absence question!

          Originally posted by Ron Gotcher View Post
          You should consult with counsel before you do anything. These types of cases really turn on the unique facts involved. The problem with remaining in H status when not working, or entering using an H visa when you don't intend to work is that your purpose in each case is inconsistent with maintenance of lawful H status. If you are going to go abroad and just come back for visits during the year off, you should get a B visa for those trips.
          Thanks Ron - its very helpful. Just one further thought - if I take a Leave of Absence for a year - do I HAVE to leave the country for the time or can I continue to stay until I start back on paid employment. My I-94 is valid for the period of my LOA. Many Thanks for your time.
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          • #6
            Re: H-1B taking leave of absence question!

            While your I-94 will not EXPIRE until the date shown, your status will become invalid if you don't comply with the terms of your admission. If you are an H1B, you are expected to work as an H1B. If you feel that you have a good reason for taking a leave of absence, then apply for a change of status to visitor for a year to accomplish that purpose.
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            • #7
              Re: H-1B taking leave of absence question!

              Originally posted by Ron Gotcher View Post
              You may take a leave of absence and return later as an H1B, but if you plan to stay in the U.S. during that time, you are going to have a problem. Unless the leave request is necessitated by unusual circumstances, such as pregnancy or the need for medical treatment, you are likely to be considered out of status if you take that much time off. If you go abroad during the one year, that is absolutely no problem.

              Thanks Ron. If one year leave of absence will have a potential problem, what is the maximum length of time of a H1B visa worker can take leave of absence if I plan to be in the U.S.?
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              • #8
                Re: H-1B taking leave of absence question!

                It depends on the unique facts and circumstances presented, but the short answer is "not very long."
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                • #9
                  Re: H-1B taking leave of absence question!

                  Ron,

                  I hope you can help answer this question.

                  Visa stamp - F1 expired
                  Visa status - H-1B good through Oct 2013

                  My plan is for both my wife (H4) and myself to leave US in Aug 2012 to pursue a Masters Degree in UK and to take care some of the personal matters. My employer is willing to make my current position available when I reenter US in April 2013. Is my plan feasible?

                  Any concern on how it could affect my H-1B status and reentry to US? Please advise. Thank you.
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