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H-1B visas and leaves of absence 


A recent correspondence from the INS addressed the issue of maintenance of H-1B status when the foreign national employee goes on an extended leave. The situation concerned a pregnant H-1B foreign national who took time off from her work under the Family and Medical Leave Act.  The woman later wanted to take an additional few months off of work and the question was how this would affect her H-1B status. Would such an extended leave jeopardize her H-1B status since she was not in the office working? The INS provided some clarification.  

According to a February 2, 2000 letter from Efren Hernandez, INS’s Acting Director of Business and Trade Services, the INS considers the H-1b nonimmigrant alien to be maintaining H-1B status so long as the employer-employee relationship exists between the petitioner and alien.  “The employer-employee relationship continues to exist when there is an identifiable tie between the employer and the alien.” Therefore, assuming that the woman intended to return to her work after her extended leave and that the employer continued to employ her, the period of time during which she was not in the office would not be considered a period of being out of status.





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