The H-1B regulations require that employers pay H-1B employees the prevailing wage or actual wage for the duration of the H-1B validity period. The question presented in this article is what allowances are given under the law to employers that excuse them from their wage obligations during periods of unproductive status, such as maternity leave?Unpaid Leave of Absence
Unpaid leave may be permitted under H-1B and may not terminate the H-1B relationship. Generally speaking, so long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick, maternity leave, on strike, or otherwise inactive without affecting his or her status. The duration of the leave and which party requests it affects whether status has been maintained.
For example, if an H-1B worker goes on unpaid maternity leave for three months it would not be a problem returning to work thereafter without interrupting status. However, if the employer requested that she take an additional six months off without pay, it may violate her status as benching is not allowed under the H-1B regulations. The rules for these assertions are identified below.Benching is Prohibited under H-1B Regulations
An H-1B employer may not bench H-1B workers. Benching is defined as placing the worker in a “nonproductive” status, without pay, due to an unavailability of work. There are exceptions to the rule; however, the exceptions are quite limited. The risk of relying on an exception is that if the government does not find the employer’s failure to pay to be within an exception, the result can be owing back wages to the worker which includes fines, penalties, and interest.The Exceptions to Wage Payment: Maternity Leave is Included!
The law gives three exceptions to the general rule that an H-1B employer must pay the worker’s wage during periods of nonproductive status. The exceptions are as follows:
- The worker is nonproductive due to circumstances unrelated to work;
- The H1B worker is made incapable of working; and
- The H1B worker has been properly terminated.
For example, leave under the Family and Medical Leave Act does not terminate the H-1B relationship with the employer. Unpaid leave may also be permitted. So if the H-1B worker must travel to care for a sick family member, for example, it would not terminate H-1B status. For an employer to qualify for this exemption, it must be determined, and documented, that the H-1B worker requested the time off for personal reasons. The employer cannot have requested it. USCIS scrutinizes these scenarios and sees them as an attempt to cover up a lack of work. If an H1B worker needs reasonable maternity leave, then this should qualify for an exception.Conclusion
Depending on the amount of time requested off by the H-1B worker, he or she may be eligible to maintain H-1B while taking time off without pay. Employers should be very careful to abide by the regulatory criteria or else risk terminating the H-1B worker’s status unintentionally. Under these circumstances, an experience H-1B lawyer should be consulted to comply with the H-1B regulatory framework as this area has been a trap for the unwary in the past.
Contact the experienced attorneys at The Law Firm of Shihab & Associates, Co., LPA if you any type of immigration law question or matter. Our experienced lawyers are ready to put forth their experience immediately to use in your particular matter. Call us today for a free initial consultation at (800) 625-3404.