Immigration Issues/EAD and Leave

Advertisement


Question
QUESTION: Hi Ajay,

I am the primary applicant of my GC which is filed on the basis of employment. My 140 is cleared and 485 is pending and received my EAD. I have a baby of one year old who was born here. I have few personal reasons for which I would like to apply for a long unpaid leave (as I am on EAD currently), probably would like to make use of FMLA. If you think I am not eligible for FMLA (I am not sure about that), can I take off from work for 2 or 3 months? Is it ok if I don't get paid during that time? Can I do that? Thanks for your advice.

ANSWER: Hi,

We cannot comment on the FMLA as it is not directly connected with immigration law.

However, as a practical matter, your I-485 should still be approved even if you are in technical violation of H1B visa status (by not being employed as per the H1B petition that has been filed) as long as the employer does not revoke the I-140 petition. There is no requirement to maintain underlying H1B visa status while I-485 is pending.

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

---------- FOLLOW-UP ----------

QUESTION: Hi Ajay,

Thanks for your answer. But, right now I am not using my H1B. My company is running my payroll based on my EAD. I mean I have totally switched my status to EAD from H1B. In that case, is it OK to have some gaps in my payroll as I am planning for unpaid leave? Thanks so much for your look and thought into this.

Thanks,

Answer
Hi,

It is OK to have gaps in your payroll. The I-485 will be approved based on an offer of permanent, full-time employment in the "future" (when I-485 is approved) by the sponsoring employer. Therefore, the USCIS will be satisfied that you will not become a burden on the government by unwilling to work.

If there is a query (also known as Request for Evidence) prior to I-485 approval, it can be noted at that time by the company that your unpaid leave is temporary, and that you are fully committed to working full-time with the company upon approval of I-485.

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

Immigration Issues

All Answers


Answers by Expert:


Ask Experts

Volunteer


Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

©2016 About.com. All rights reserved.