Taking a leave of absence can be a necessary and even unavoidable part of life. However, for foreign nationals working in the United States on employment-based visas, these absences come with high stakes. Whether for medical reasons, family needs, or unexpected emergencies, time away from work can affect not only your job—but your legal status.
Navigating these risks requires more than guesswork. It takes a deep understanding of immigration law, proactive planning, and the guidance of experienced legal counsel. If you're unsure how a leave of absence may affect your work visa—or if you're already on leave and concerned about what comes next—Pollak PLLC can help you take the right next step.
What Makes Pollak PLLC Different?
When your ability to live and work in the U.S. is on the line, you need more than basic legal advice—you need a partner with proven results.
Decades of Focused Immigration Experience
Pollak PLLC offers more than 27 years of exclusive experience in U.S. immigration law. Our firm has helped thousands of clients—from multinational companies to individual professionals—navigate complex legal issues involving employment visas and immigration compliance.
Personalized Counsel From Start to Finish
Every matter at Pollak PLLC receives direct attention from Managing Attorney Karen-Lee Pollak. Your questions are answered by experienced professionals who understand the nuances of immigration law—not passed off to inexperienced staff.
National Reach With Boutique-Level Service
With offices in Dallas and Fort Lauderdale and clients across the country, our firm combines nationwide capability with the hands-on support of a boutique practice. We keep you informed, anticipate issues before they arise, and advocate for your long-term success.
Understanding Work Visa Requirements
To understand how a leave of absence might affect your visa, it's important to first understand what's expected of noncitizen workers in the U.S.
What Visas Are Affected?
Common work visas affected by leave-of-absence concerns include:
- H-1B: for specialty occupations requiring a bachelor's degree or higher
- L-1: for intracompany transferees
- O-1: for individuals with extraordinary ability in their field Each of these visas has strict terms that must be followed throughout the employment period.
What Does "Maintenance of Status" Mean?
Maintaining status means continuously meeting the conditions of your visa category. For employment-based visas, this usually means remaining actively employed in the position and capacity outlined in your original petition. Significant changes, including unpaid leave or a reduction in hours, can trigger compliance issues with U.S. Citizenship and Immigration Services (USCIS).
The Role of USCIS Expectations
USCIS expects nonimmigrant workers to fulfill the employment terms of their approved petitions. Failing to do so—even temporarily—can be interpreted as a violation of status unless specific exceptions apply. This makes it critical to understand how any leave of absence could affect your situation.
How Leaves of Absence Can Affect Work Visas
A leave of absence isn't automatically a status violation—but it can become one if the employer and employee are not careful.
The Impact of Extended or Unpaid Leave
If you stop working for an extended period or take an unpaid leave that is not clearly permitted by law, USCIS may consider you out of status. This can affect future applications, including adjustment of status for permanent residency.
Consequences of Falling Out of Status
- You may be ineligible to adjust status from within the U.S.
- You could be subject to removal proceedings
- If you remain in the country unlawfully for 180 days or more, you may trigger a 3- or 10-year reentry ban. Even if your intentions are reasonable, a misstep can have long-term consequences.
When Changes in Employment Become Material
A material change in employment—such as reducing your hours from full-time to part-time, or being placed on leave without pay—can require an amended petition. Failing to report or amend these changes can result in compliance violations.
When Are Leaves of Absence Permitted?
Taking time away from work is sometimes necessary, but not all types of leave are treated equally under U.S. immigration law. While some absences are recognized and accepted by USCIS, others can put a noncitizen worker's visa status at risk if not properly managed.
Common Types of Permitted Leave
USCIS typically recognizes certain types of leave as valid, provided the employer maintains the employee's role and intends to reinstate them after the leave ends. These include:
- Medical leave for illness, surgery, or recovery
- Maternity and paternity leave following childbirth or adoption
- Short-term disability leave supported by appropriate documentation
In these situations, the employment relationship remains intact, and USCIS does not necessarily view the leave as a violation of visa terms. However, documentation and consistency in employer treatment are critical.
Understanding Reportable vs. Non-Reportable Absences
Short, paid absences that are part of an employer's regular benefits policy—such as vacation time or brief medical leave—typically do not need to be reported to USCIS. These are considered part of normal employment and are unlikely to impact status.
On the other hand, unpaid or extended leaves—especially those lasting several weeks or more—can rise to the level of a material change in employment. In such cases, an amended petition may be necessary. Employers should never assume that silence equals compliance. Legal guidance is essential to evaluate whether an absence triggers a reporting requirement.
Aligning Internal Policies With Federal Requirements
Even if a leave is authorized under company policy or state labor laws, that alone does not guarantee compliance with immigration regulations. USCIS applies a distinct legal framework that considers whether the original terms of the visa are still being met.
For example, a company may approve a six-month unpaid sabbatical, but for an H-1B visa holder, that could constitute a lapse in status unless a legal strategy—such as an amended petition or change of status—is implemented.
Employers and employees alike should approach extended leave with caution. By seeking immigration counsel early, they can preserve legal standing while still accommodating personal or medical needs.
Employer Responsibilities and Legal Risk
When sponsoring a foreign national employee, an employer takes on more than administrative duties—they accept legal accountability for maintaining compliance with immigration laws. A misstep during a leave of absence can lead to serious repercussions for both the employer and the worker.
Compliance Starts With Timely Action
Employers must take immediate action when a leave of absence materially alters an employee's work arrangement. This includes reductions in hours, extended unpaid leave, or changes to job duties. In these cases, an amended petition may need to be filed with U.S. Citizenship and Immigration Services (USCIS).
Failing to file on time—or failing to file at all—can lead to the employee falling out of status. That, in turn, puts the employer at risk of scrutiny during future petitions and could impact their ability to hire other foreign workers.
Wage Obligations Under the LCA
For visa categories such as H-1B, employers are bound by the Labor Condition Application (LCA) they submitted as part of the original petition. This document outlines specific wage requirements and job responsibilities that must remain in place throughout the term of employment.
If an employee is placed on unpaid leave without a valid exemption or USCIS approval, the employer may be in breach of the LCA. Similarly, assigning duties outside the scope of the original petition—without formally updating USCIS—can create compliance issues.
Penalties for Noncompliance
Immigration enforcement agencies take employer violations seriously. Consequences can include:
- Civil monetary penalties
- Disqualification from future immigration sponsorship
- Investigations by the Department of Labor
- Criminal charges in cases of willful fraud or abuse
Working With Legal Counsel to Reduce Risk
Employers don't need to navigate these complexities alone. At Pollak PLLC, we work directly with HR professionals, in-house counsel, and business owners to help them understand their obligations, prepare the right documentation, and take timely corrective actions.
Whether it's evaluating if a leave qualifies as a material change or drafting an amended petition, our legal team provides clarity and confidence. With our proactive support, employers can avoid unnecessary exposure and protect the legal status of the valued professionals they employ.
Legal Options to Maintain Status During Leave
Taking a leave of absence doesn't automatically mean giving up your immigration status. With the right legal strategy, noncitizen employees can often remain in compliance while stepping away from their professional duties—temporarily or in a modified role.
Adjusting Employment Through an Amended Petition
One of the most effective ways to preserve visa status during a leave or change in schedule is through an amended petition. If a worker moves from full-time to part-time employment, for example, or their job responsibilities shift significantly, USCIS must be notified.
Filing an amended H-1B or similar employment-based petition updates USCIS with the new terms of employment. This filing should clearly outline the reason for the change—whether due to a medical need, family circumstance, or other qualifying condition—and provide documentation to support the request. Timeliness is key. Failing to file before the change takes effect can result in a lapse in status, even if the change is temporary.
Exploring a Change of Status to B-2
In situations where employment will pause entirely, a change of status to B-2 (visitor) may be appropriate. This option is often used when the individual plans to stay in the United States temporarily but will not engage in employment during their leave.
To qualify, the applicant must show that the leave is legitimate and that they intend to resume employment—or depart the country—when the leave concludes. Because the B-2 status does not permit employment, this path is best suited for individuals who need a full break from work but wish to remain with family or recover from a medical issue.
Utilizing Advance Parole and Employment Authorization
For those already on a path to permanent residency through adjustment of status, advance parole and employment authorization documents (EADs) provide valuable flexibility. Advance parole allows an individual to reenter the U.S. after travel abroad without abandoning their green card application, while an EAD grants temporary work authorization.
These tools are particularly useful during lengthy green card processing periods. For instance, an employee awaiting a green card approval who needs extended medical leave might use an EAD to maintain work authorization—or pause employment without falling out of status.
Additional Legal Strategies for Complex Situations
Certain scenarios—such as prolonged disability leave or extended travel for family emergencies—may require more creative solutions. In these cases, Pollak PLLC assesses the full legal and personal context to recommend a customized approach.
Options may include:
- Coordinating with the employer to preserve the role during leave
- Preparing documentation for USCIS to explain the absence
- Timing filings to maintain eligibility for future immigration benefits
We help clients think several steps ahead, reducing the risk of status violations and paving a path to long-term immigration success.
Strategic Guidance From Pollak PLLC
Pollak PLLC has a long history of helping clients navigate the complexities of employment-based immigration during difficult life events, including medical leaves and family emergencies.
Individualized Planning for Employees
We work with employees to review their visa conditions, plan around permissible leave options, and file any necessary amendments. Our firm takes care to ensure your immigration goals remain achievable, even during unexpected challenges.
Support for Employers and HR Teams
Pollak PLLC partners with businesses to develop compliant leave policies, assess risk, and handle USCIS filings. We provide legal support that aligns with your workforce needs and protects your company from liability.
Real-World Solutions
Whether assisting a tech company during pandemic-related hour reductions or helping a healthcare worker obtain a medical leave without jeopardizing their green card process, our firm delivers customized strategies that work in practice—not just on paper.
Schedule a Consultation With Pollak PLLC
Leaves of absence are never simple—but they don't have to derail your immigration status. If you're worried that time away from work could put your visa at risk, it's time to take proactive steps.
Pollak PLLC provides the trusted legal guidance you need to move forward with confidence. From evaluating your current immigration standing to filing amended petitions or navigating compliance challenges, we're here to help you protect your future in the United States.
Pollak PLLC is an award-winning immigration law firm with offices in Dallas, Texas, and Fort Lauderdale, Florida. Contact us at info@pollakimmigration.com or call 214-307-5510 today to schedule a consultation to discuss your options. You can also see updated information on our Pollak PLLC Facebook page.
