H1B on long unpaid leave while in the US

[samsbst]

Hi,

I am sure this question has been asked before but when I tried to look for the for the similar topic, I could not get an exact question that matches what I would like to ask. So please read the below question and advise based on my situation which is:

1) I am on H1B extension (8th year running).

2) Have PERM and I-140 approved and have valid H1B until Oct 2014.

3) Me and my wife had a baby in August of 2013.

4) Me and my wife are Civil Engineers and have been working for about 8.5 years for the same company with all the paperwork in order.

 

Now based on the above situation, i have the following question:

Since August, when our baby was born, we had taken paternity and maternity leaves. After they got over, my wife returned to work two weeks ago.

 

I requested my employer if they can allow me to extend my stay at home for another 6 months to take care of our baby (without pay because my vacation time was used up when the baby was born) or if I need to resign (and go on H4). My company, very respectfully, agreed to keep me on and asked me to come back to work when I am ready. Meanwhile my H1B will continue. Is this O.K. or should I resign and go on H4. (I know I will not be able to come back on H1B and will forfeit my GC application too!) But for us our baby is a priority for the first year and will do whatever it takes to be with him. Please advise.

 

Thanks a lot,

[jairichi]

Hi,

I am sure this question has been asked before but when I tried to look for the for the similar topic, I could not get an exact question that matches what I would like to ask. So please read the below question and advise based on my situation which is:

1) I am on H1B extension (8th year running).

2) Have PERM and I-140 approved and have valid H1B until Oct 2014.

3) Me and my wife had a baby in August of 2013.

4) Me and my wife are Civil Engineers and have been working for about 8.5 years for the same company with all the paperwork in order.

 

Now based on the above situation, i have the following question:

Since August, when our baby was born, we had taken paternity and maternity leaves. After they got over, my wife returned to work two weeks ago.

 

I requested my employer if they can allow me to extend my stay at home for another 6 months to take care of our baby (without pay because my vacation time was used up when the baby was born) or if I need to resign (and go on H4). My company, very respectfully, agreed to keep me on and asked me to come back to work when I am ready. Meanwhile my H1B will continue. Is this O.K. or should I resign and go on H4. (I know I will not be able to come back on H1B and will forfeit my GC application too!) But for us our baby is a priority for the first year and will do whatever it takes to be with him. Please advise.

 

Thanks a lot,

Sorry, you cannot be on unpaid leave and be on H1B. If you are that means you are out of status. You have to apply for a COS to H4 to stay in US or join employer.

[t75]

Your baby will be fine with good childcare. If the GC is based on your employment, why don't you work and your wife stay home?

[samsbst]

Hi,

Thank you for your reply. I came across this on the USCIS website. Could you please let me know if this information allows one to go on an unpaid leave? Looks like paternity leave is a valid reason.

http://www.uscis.gov/e-verify/federal-contractors/e-verify-federal-contractors-questions-and-answers/faq/if-employees-are-inactive-leave-status-are-reinstated-active-work-status-should-i-consider-them-terminated-and-do-i-need-complete-new-form-i-9

Thank You

[jairichi]

Hi,

Thank you for your reply. I came across this on the USCIS website. Could you please let me know if this information allows one to go on an unpaid leave? Looks like paternity leave is a valid reason.

http://www.uscis.gov/e-verify/federal-contractors/e-verify-federal-contractors-questions-and-answers/faq/if-employees-are-inactive-leave-status-are-reinstated-active-work-status-should-i-consider-them-terminated-and-do-i-need-complete-new-form-i-9

Thank You

Yes. But, there is a limit for paternity or maternity leave. If you had crossed the limit you cannot avail more paternity or maternity leave. You need to talk to your employer's immigration attorney and not just to your employer.

[t75]

Your employer does not have a "paternity leave" policy if you must resign to stay home therefore you are not on an approved "paternity leave".

[jairichi]

Also, in your situation can't you work remotely from home?

[samsbst]

Hi everyone,

thanks a lot for the replies. please note that the green card application hAd been filed individually for myself and for my wife. Even if I forfeit my application my wife's application will still continue. eventually when it's time to apply for I 485 I would be able to add my name into her application. also childcare is not an option at this point as I previously mentioned that staying with our baby at least one of us is the utmost priority. just for the arguments sake I do consider that the paternity leave has been approved by my company as there was a formal meeting between me and my employer to discuss this matter in detail. also since we are civil engineers the company that we work for is an interaction based company and unfortunately we don't have the luxury to work from home. so the only two options i am left With are either to continue my H1b visa and stay home and join back when I'm ready and if that is illegal to do, I would have to resign and apply for the h4 visa. On a personal note financially it makes more sense for my wife to work.

[jairichi]

Hi everyone,

thanks a lot for the replies. please note that the green card application hAd been filed individually for myself and for my wife. Even if I forfeit my application my wife's application will still continue. eventually when it's time to apply for I 485 I would be able to add my name into her application. also childcare is not an option at this point as I previously mentioned that staying with our baby at least one of us is the utmost priority. just for the arguments sake I do consider that the paternity leave has been approved by my company as there was a formal meeting between me and my employer to discuss this matter in detail. also since we are civil engineers the company that we work for is an interaction based company and unfortunately we don't have the luxury to work from home. so the only two options i am left With are either to continue my H1b visa and stay home and join back when I'm ready and if that is illegal to do, I would have to resign and apply for the h4 visa. On a personal note financially it makes more sense for my wife to work.

I had the feeling that your wife must be making more money than you and that is the reason for you willing to stay in home and take care of your baby. That is understandable. Why don't you talk to an attorney from murthy law firm and decide accordingly?