Family Leave Act and H1Bs
Posted Sep 24, 2000

In a September 14, 2000 teleconference between officials at INS headquarters and representatives of AILA, INS indicated that H1B employees are allowed to take family leave without jeopardizing their H1B status. This position is consistent with the laws and regulations that require H1B workers to be accorded the same working conditions as other employees. 

According to the INS, an H1B employee can take time off from work under the Family Leave Act or under the company's maternity or parental leave policy, and still be in valid H1B status in the U.S. In order to maintain legal H1B status, the H1B employee cannot take more leave than is generally allowed for other employees. As evidence of maintenance of H1B status, such as for the purpose of filing a change of employer (often called a "transfer") petition, the INS recommended providing a letter from the employer indicating that the person is on parental leave but remains an employee of the company. 

At an AILA meeting attended by attorneys from The Law Office of Sheela Murthy, P.C., INS officials made similar statements to the above with regard to educational leaves. Yet these policies, whether for educational leave or parental leave, have not been set forth in regulations. Please note that regulations have the force of law, while policies can change suddenly at any time if INS decides to change its interpretation of the law. Hopefully the policy on leave will not change; it is logical and, as mentioned above, it is consistent with other laws.