Does ICE think I'm still working if I'm on leave without pay?

April 30, 2008 5:51 PM

H1B question: Can I go on leave without pay and remain in continual employment, for the purposes of transferring the H1B to a new employer?

To avoid applying for a new H1B when moving to a new job, I need continuous employment. My next employer just submitted an application for my transfer to a new job there in a few months. My current job is a misery and for various temporary reasons I am useless at it. I would like to take leave without pay from it, and preferably return to my home country for a while. I am pretty sure my current boss would be cool with this, but as far as ICE is concerned, can I do this without interrupting my status as "continually employed?"

Various websites say yes. But there are some contradictory claims from sketchier sources leading me to feel a little uncomfortable about this strategy. I would like to find the formal ICE policy document or statute which makes leave without pay acceptable.

I would ask at work, but they have proven to be pretty clueless about immigration issues in the past, and I don't want to tip my hand about wishing to leave early before I've confirmed that it's viable to do so.

posted by anonymous to work & money (6 comments total)

Talk to an immigration lawyer. It's worth a few hundred bucks to get this right, isn't it?
posted by winston at 6:11 PM on April 30, 2008

Can't your prospective employer cough up $1000 for premium processing? I have been advised that premium processing takes 3-4 weeks these days.

I have also been told that out of country travel is not advised while an H-1B transfer is pending, even if you are continuously employed and switching to a different job with the same employer. Transfers can get denied, RFEs can get issued, you can have issues reentering the US. Best to avoid until you have the approval notice.

Good luck finding an official document, I highly doubt one exists.
posted by crazycanuck at 8:27 PM on April 30, 2008

I don't know the answer, but like Crazycanuck I recommend not leaving the country, unless you have an Advanced Parole. Definitely ask an immigration lawyer, I know its annoying to spend money on this, but really immigration laws are not nice, easy to read and understand laws you can just look up. They are a horrible spaghetti of contradictory rules issued at different times without regard for the previous rules. Also, don't ask ICE, the staff will happily tell you incorrect information if it benefits them by causing less work (this happened to me). My experience with US immigration was mostly straightforward, with the exception of the transfer of one H1B to another (same employer, but 3 years was up). That experience was bad and I nearly lost the right to work. Thank god I had a lawyer to sort it out for me. So, in summary, ask a lawyer, its the only way to be sure.

Perhaps you can ask the lawyer your next employer is using?
posted by Joh at 9:59 PM on April 30, 2008

For what it's worth, I know someone who did this without problems (including leaving the country while on unpaid leave). But as already noted, you probably don't want to be out of the country when the h1b transfer application is lodged - be back before then.

I think the h1b transfer application involves submitting a few of your most recent paychecks from current employer, so if you don't plan to come back from your leave and do enough work to get some paychecks closer to the transfer date, you probably need to get your boss to explain (in a letter confirming your continued employment there) that you requested and were granted unpaid leave from period X through Y.

IANAL.
posted by -harlequin- at 12:06 AM on May 1, 2008

I'm not a lawyer by any stretch of the imagination, but I help process non-immigrant visas for a living. Speak with an immigration attorney. I cannot stress this enough. Immigration law is a byzantine mess of controlling laws and memos and precedents, and you will need professional advice.

Start at the American Immigration Lawyers Association. They have a lawyer lookup you can use, as well as other resources and information. When you do speak to a lawyer, be as forthright as possible about your situation and any details you believe to be relevant.

ICE isn't what you should be worried about, and their site won't tell you anything. Your petition will be reviewed and adjudicated by the USCIS. They provide resources on their site that you can dig through if you want, including a lookup for average processing times depending on which Service Center your case was filed at. This is not a replacement for a lawyer. Speak to a lawyer. (Notice how I put that in bold and italics? It's really that important.)

You should never leave the country while a petition is pending with the USCIS. This includes Mexico and Canada. Once again, you'll want to discuss this with an attorney.

(Oh, and the USCIS guarantees adjudication on cases with Premium Processing within 15 days as opposed to 3-4 weeks. If it takes them longer, you get the Premium Processing fee back.)
posted by truex at 8:58 AM on May 1, 2008 [1 favorite]

Also, don't trust anything you read about immigration law on a site that doesn't end in .gov. No matter what you see or read or hear online, there's one thing I can't emphasize enough.

Contact a lawyer.
posted by truex at 9:04 AM on May 1, 2008