H1b Maternity leave.... Advice please

[harsha82]

Hi All,

 

This question is regarding my wife.

She came to USA in 2013 on H4 dependent visa.

In 2015 H1b quota, she changed to H1b status and working from Oct-2015 and her i-797 valid until Dec-2016.

Her employer is consulting firm from New jersey and my client location in Illinois.

 

She is pregnant and her due date in June.

 

Her Employer suggested she can go on unpaid maternity leave for 8 weeks (I.e June & July). without affecting status..

 

1. Can she stay on same H1b without getting paid ?

2. Is it legal to say on same H1b status without pay for 2 months, providing doctors letter explaining her situation?

3. Any issues during the H1b Extension in Sep or Oct 2016?

4. Any issues during GC process?

 

Regards,

Harsha

 

[pontevecchio]

You should discuss this with a Lawyer. Call the firm of Murthy. I suspect she should change status to H4.

[harsha82]

Thanks Pontevecchio...

 

i have contacted the lawyer who filed her H1b... He said no issues to take leave...

 

i want conform before acting so... 

 

Jairishi or any other from this forum ... can you please answer my questions...

 

Regards,

Harsha

[permaudit]

She needs to apply for FLMA I guess. It eventually depends on the company on the duration. FLMA protects her to be in the job(unpaid though) for about a year I guess. She should not have any issues with immigration. 

[harsha82]

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

 

Her H1b employment started in Oct 2015. She is working with that employer form last 6 months. I dont think she is eligible for FMLA (unpaid) leave.

 

Appreciate your response.. 

 

Waiting for the inputs regarding this case.

 

Regards,

Harsha.

[harsha82]

Hi all,

 

Waiting for your feedback in above situation.

 

Regards,

Harsha

[pontevecchio]

She should change status to H4. If she applies next month she can work on H1 till decision.

[harsha82]

Thankyou Pontevecchio for your reply....

 

Her employer said no need to change to H4 for 2 months and more over he is not ready to pay again for H1b Fees i.e, 7000$.

 

My question straight forward whether she can be on same H1b Status (unpaid) for 2 months for genuine reason of maternity (submitting doctors letter to employer) and she is not eligible for FLMA bcoz she did not work for 1 year to that company as her H1b status started in Oct 2015 and she is ready to move back to work immediately after the time frame 2 months.

 

Appreciate your feedback.

 

Regards,

Harsha

[pontevecchio]

You have stated that the Immigration Lawyer said it was possible. Why second guess him?  A appropriate letter from the employer may suffice. Do not follow a forum to the detriment of Legal opinion by a Lawyer.

[JoeF]

http://www.murthy.com/2014/08/04/i-am-a-full-time-employee-in-h1b-status-i-am-expecting-a-baby-in-winter-can-i-take-6-months-sabbatical-without-pay/

 

If other employees can also get the same length of maternity leave, if the employer has a written policy on that which is given to all employees, then it is probably ok.

If this is a one-time decision from the employer, then it probably wouldn't be ok.

Essential is that all employees are treated equal.

[harsha82]

Thank you pontevecchio for your reply...

 

As you said i got legal opinion from the lawyer... But the reason i posted in this forum is to get the second opinion... Most of the times i got valuable feedback through this forum.

 

I dont want to get in trouble in future regarding status issues in future...

 

Appreciate your reply..

 

Regards,

Harsha

[harsha82]

Thank you Joef....

 

Appreciate your feedback... i got the answer with your explaination... I will check the employer policies..

 

Regards,

Harsha