by Adam Cohen

Question: An individual in H–1B status has requested an unpaid leave of absence. There is no medical or family need for said leave.  If granted, how does this affect H-1B status and the employer’s payment obligations?

Answer: I would point to 20 CFR 655.731(c)(7)(ii). According to this federal regulation, if an H-1B employee experiences a period of nonproductive status due to conditions unrelated to employment which take the employee away from his duties at his voluntary request and convenience or render him unable to work, then the employer is not obligated to pay the required wage, unless the employer is obligated to do so under the employer benefit plan or other statutes such as the FMLA, ADA, etc. The Department of Labor does list some helpful examples of a voluntary leave request, including “to tour the U.S.,” so a medical or family need is not required.

The leave approval and its length should be in line with the employer’s standard leave policy, so that there is less of a concern of special treatment or “benching” in disguise. After all, H-1B employees are entitled to the same leave as all other employees. An H-1B employee taking such leave should not violate his or her status. However, an employee cannot take more leave than is usually allowed other employees and still be considered in status.

The employer should document the public access file well with its standard leave policy (such as an employer handbook excerpt), the written leave request from the employee, and the leave decision from the employer. The employer could also include a letter noting that the employee remains employed, but has just been approved for temporary, unpaid leave.

A leave of absence may impact the employer and employee in other ways, apart from the H-1B context.  For example, if the employee is a physician completing a three year J-1 waiver service commitment, the physician would likely not be able to count the leave period as part of the three year service.

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