Can You Take a Leave of Absence on Your H-1B Visa? 

Published: January 26, 2025

The United States Citizenship and Immigration Services (USCIS) has reached the maximum number of H-1B visa petitions allocated for FY 2025. It includes both the 65,000 regular caps for H-1B visas and the additional 20,000 H-1B visa limits for US advanced degree holders. 

H-1B employees must meet certain requirements to maintain their immigration status as outlined in the visa application. Failing to do so can directly affect both the foreign worker and the employer. Since H-1B work visas, H-1B workers must continuously work for a sponsoring employer and receive wages to preserve lawful immigration status. 

Hence, understanding the implications of taking a leave of absence while on H-1B status is imperative. Although an H-1B worker can go on a leave of absence from work, performing some due diligence is necessary to ensure one’s immigration status remains valid. Learn the impact of taking leave on your H-1B employment and the necessary steps to protect your status. 

Understanding Leave of Absence on H-1B Visas

H-1B employees have the same leave benefits as any US citizen and permanent resident occupying similar job positions within the company. Although entitled to various forms of leave entitlements, the specific type can affect one’s H-1B status. Below, understand how taking a paid or unpaid leave of absence on your H-1B visa works and impacts your immigration status. 

Paid leave of absence

Continued payment during paid vacations is evidence of the ongoing employer-employee relationship. So one-to-two-week vacations usually don’t need justification to the immigration services, provided that it’s following the employer’s standard policy. 

That’s why maintaining a clear policy regarding paid leave is critical for employers. The employee handbooks or policies must document the leave of absence to show the USCIS or other agencies should there be inquiries about the employee’s status during a leave period. 

Unpaid leave of absence

Careful consideration is paramount to ensure one’s H-1B status remains intact, particularly during an unpaid leave. In most cases, only the extended unpaid leaves of absence require additional paperwork to justify it. 

Your decision not to work exempts employers from the wage requirement for reasons unrelated to employment. That means the employer doesn’t need to pay wages during one of the following examples due to the worker’s personal reasons or inability to work: 

• Touring the US
• Providing care for an ill relative
• Taking time off for maternity leave
• Recovering from a car crash causing temporary disability

It’s crucial to note that even in such situations, employers must still pay H-1B wages if an employer benefit plan or regulations require it. Thus, you must check with labor counsel to see if any laws require continued H-1B wage payments throughout the leave period. 

Essential Steps to Maintain Your H-1B Status During Leave

A long leave of absence can raise concerns about your H-1B status. You can take time off work but you must understand how to preserve your immigration status throughout this period. Below are some steps to keep in mind when considering a leave of absence on your H-1B visa. 

Request leave in writing

Generally, lawful status remains valid during approved leaves of absence. The first consideration is to submit a written leave request, specifying the reason for the leave and the intent to return to work after the leave period. 

Securing a written confirmation of the approved leave and whether it’s paid or unpaid is important as well. Remember, there’s a wage requirement for the H-1B visa that employers need to pay. A written documentation confirming your approved leave of absence clarifies any discrepancies in your paycheck or W-2, especially when you’re on prolonged, unpaid leave. 

Retain proper documentation

Your employer should maintain records of the leave request in case of future inquiries from an immigration officer or officials from the Department of Labor (DOL).  Proper documentation of your leave request helps maintain your H-1B status as it serves as evidence of your ongoing employment. 

Short leave of absence of one or two weeks typically doesn’t require any documentation or explanation, as they’re often paid. However, some employers grant additional unpaid leave. In that case, preparing the following documents can be beneficial in explaining any gaps in your H-1B employment: 

• Employer’s confirmation letter
• Medical records for you or a family member
• Birth certificates for newborn babies
• Key sections of your employer’s benefits plan

Maintain ongoing communication

It’s also crucial to communicate with your employer continuously while on leave. Giving updates through email or other means ensures transparency and substantiates your intent to return to work. 

As you keep your employer informed about your situation, you can show the employer-employee relationship’s continuity, which is necessary for preserving your H-1B status. It’s even more critical for extended leaves to reassure your employer. 

Avoid the Uncertainty of Protecting Your H-1B Status

Demonstrating a continuous employer-employee relationship throughout the H-1B visa period is crucial, even during a leave of absence. Whether paid or unpaid, you must have the necessary paperwork when taking a leave of absence to prove your employment remains active. This may involve submitting work and payment documentation to immigration services.

Considering the importance and intricacies of protecting one’s H-1B status, experienced immigration counsel plays a role in ensuring compliance with regulatory standards and safeguarding your interests. Our team at ALG Lawyers, Los Angeles immigration lawyers, understand that each individual’s immigration circumstances vary. Call us now for personalized H-1B visa assistance.