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Results 1 to 8 of 8

Thread: Green Card / H1 Question

  1. #1
    I have completed 5 years on H1 and my company has
    green card processing pending in labour (2 years
    waiting). Now for some personal reasons, I would like
    to take a break(leave) for 3 to 6 months and be in my
    home country for that 6 months. As per the company
    policy, they do not allow me to take leave for that
    much time (3 to 6 months). So one idea is to resign
    from my employment and get an offer letter with future
    date (say employement starting after 6 months) and
    rejoin them after 6 months. Will there be any issues
    in doing that?
    Will there be any issues with my Green Card and H1?

    Your advise will be really helpful.

  2. #2
    I have completed 5 years on H1 and my company has
    green card processing pending in labour (2 years
    waiting). Now for some personal reasons, I would like
    to take a break(leave) for 3 to 6 months and be in my
    home country for that 6 months. As per the company
    policy, they do not allow me to take leave for that
    much time (3 to 6 months). So one idea is to resign
    from my employment and get an offer letter with future
    date (say employement starting after 6 months) and
    rejoin them after 6 months. Will there be any issues
    in doing that?
    Will there be any issues with my Green Card and H1?

    Your advise will be really helpful.

  3. #3
    If you were to not be employed anymore, you would have to start a new processing of your labor certification, etc. If you were to return after 6 months, you would not have enough time left on your H-1B to pursue a green card at that time. If you were overseas for more than 1 year, then the H-1B clock would start anew, meaning that your employer could prepare your petition as a "new" H-1B and thus you would have an additional 6 year period.

    Please remember that H-1B aliens are not allowed to take leaves of absence, because that breaks the H-1B status. Obviously, the labor certification that is pending for you would become null and void. If you are interested in getting your green card, you should not leave.

  4. #4
    I think Krish did not explain her/himself very well...
    Is the LC still pending with DOL? if so, are you sure (NYCImmParalegal) that in case of leaving the Country even loosing H-1B status the ETA-750 forms will be canceled?

    I dont think so... what will be the situation here?

  5. #5
    I think as LCA for Green Card(My employer can continue with my Labor Certification process even if I am not working with them) is pending with state DOL for more than 2 years, even if I comeback after 6 months and rejoin them (as I have valid approval petition and visa notice), it should not be a problem with H1-Status (I will never be out of status as I will not be in US from the day I resign from my employer). After I comeback and I will have 6 more months on H1 and since my LC for GC is pending for more than 2 years, I should be able to get 7th Year extension. Does anybody disagree with this?

  6. #6
    >they do not allow me to take leave for that
    >much time (3 to 6 months). So one idea is to >resign from my employment and get an offer >letter

    I don't get it. From a company standpoint -- what's the difference between a "leave" and a "resign and rejoin later"? Why not just take the time off. Or would they have to pay you salary/benefits etc during that time?

    btw: Once you leave a job, doesn't the h1b become void? I don't think you can just come and start-up work whenever you please with that employer. Be prepared for a possible grilling at the POE if they get suspicious.

    -= nav =-

  7. #7
    Moondin is right:

    The H-1B does NOT allow one to leave the country, except for leisure/business travel, then to return and "resume" H-1B stay. If you leave your job for whatever reason, even if you intend to rejoin the company at a later date, your H-1B status goes. There are two parts to the H-1B: one is the USCIS part (with forms, letter of employer, etc.); the other is the DOL part, which is the most important. This includes the attestation by the employer that it will pay the stated salary (to be at least 95% of the prevailing wage in the area) and provide the same benefits. Generally, nonimmigrant workers are NOT allowed to take leaves of absence.

    Krish, even if you have a valid visa, the mere fact of you leaving the company and rejoining them voids out your H-1B. The Labor Certification (not to be confused with the LCA, labor condition application) is a statement by your employer to the DOL that it has a position available and it wants to fill that position with you. If you are no longer employed by the company, then the labor certification is no longer valid. It would be fraudulent for you to use this labor certification if you were to leave your employer.

    Krish, should you leave your employer and should you wish to rejoin your employer, you should know that your employer will have to file another H-1B petition on your behalf. Again, when you leave your employment, your H-1B is no longer valid.

  8. #8
    An H-1B petition is valid for the entire duration of the petition, unless the employer withdraws the petition, or unless the employee leaves the employment.

    Leaving the country does NOT void the H-1B. If an employee spends several months abroad, then wants to return in H-1B status with the original employer, he may be questioned by immigration on his entry, particularly if there are only a few months left on the H-1B. However, if the employee has a current letter from the employer, affirming that he will be returning to work for that employer, and a valid H-1B visa and approval notice, he will be admitted in H-1B status.

    Also, taking a leave of absence also does NOT void the H-1B, and H-1B workers can take unpaid leaves. I am familiar with many cases where women in H-1B status have taken an unpaid maternity leave, and they are considered to be in valid H-1B status. Similarly, I have seen workers may take unpaid leaves to go home for a month or a few months due to a family emergency. Employers are often wary of giving H-1B workers unpaid leave, because it can give the impression that the employer has benched the worker (i.e., put him in involuntary unpaid status); however, if both the employer and the employee agree that the leave is voluntary on the part of the employee (and ideally, is requested by the employee) this is legal and has been okayed by both USCIS and by DOL.

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