Leave of Absence with H-1B expiring?

Kymm · June 2004

We have an employee whose F-1 Employment Authorization card will be expiring on 7/8. We have decided to sponsor him and his H-1B has been approved, but it will not be effective until 10/1. We were going to terminate him and then re-hire, however, his attorney is advising us to just put him out on a personal leave of absence for those couple of months. He also is going back to Malaysia during this break and is asking us for a letter stating that he is employed with us. What do you all think? (We have allowed personal LOA's for this amount of time, and he would continue to pay his insurance premiums, etc.) but not sure if we would "legally" be ok to have someone on Leave that has an expired F-1? Help??

Don D · June 2004

There's no reason to have him on a leave of absence. The pending document will allow him to continue working. I've crossed that bridge many times. Leave him on active status. I would however caution that he should not, absolutely not, go to Maylasia. A competent labor attorney with immigration document/process experience would tell him that he is in serious jeopardy of not being allowed to return to the United States if he leaves the country and has a pending authorization as his current document. As a matter of fact just over a year ago, I had an engineer from the same country who had a document pending, just like your guy does, and our attorney advised in writing that under no circumstances should he leave the country as Maylasia was one of the countries that he would not be able to return to the U.S. from. I question the competency of the attorney who gave those two pieces of advice. both are counter to all of the experiences I have that are identical to your guy.

Kymm · June 2004

First, I see that I incorrectly said in my openihng question - LOA with H-1B expiring...it should say that his F-1 is expiring on July 8th. Don, you are saying that with him no longer having a valid F-1 card we can have him continue to work? That doesn't seem right. His documentation now states that his H-1B will be effective 10/1 - I would think we wouldn't want him working until then.

NM _Tom · June 2004

Don is correct in his advice. I too have experienced an individual that left the country as described by Don and was not allowed re-entry into the US. I would also leave him "Active" status- just ensure that he doesnt work after 7/8, and that no wages or any other payments are made during the gap in authorizations.

Good luck- let us know how it turns out.

Don D · June 2004

I have worked through the process with many individuals on H1-B. Our attorneys always advised that as long as you have the receipt letter from the government indicating the reauthorization is in progress, it is safe to continue with their employment. To do otherwise, jeopardizes the whole process. When you affect their job or job title or work assignment in any way, including putting them on leave, the whole process could self-invalidate. Leave them employed. The government is not going to penalize you for anything when you have the file full of documentary evidence showing that you have continued right along to continue with the certification process. Get ready for a five year process! And, again, I will caution you and the alien that he MUST NOT leave the country under any circumstances while his status is pending or questionable. Oh, and, get yourself another attorney. If the attorney is 'the aliens' attorney, you need your own. Hire one who looks only after YOUR interest as an employer. And avoid the 'advice from the cousin in Detroit who can tell your alien how to negotiate the process.' Pay NO ATTENTION to any of that crap.

Leave of Absence with H-1B expiring?

Comments