| Q. |
RFE on H visa
My wife was working on L1 visa for employer A.
Employer B sponsored her new H1B april 1, 2008.
We got RFE asking for last 3 months payslip to prove she is maintaining status of L1, I suppose.
She was on leave for 3 months because we had a baby and it was cesarean so we dont have payslip of the whole 3 months from apr to july.
She just started working 2 weeks ago.
1. Was she considered not maintaining her status because she did not work for 3 months but with a valid reason (we had a baby).
2. Can we submit hospital records and will it be sufficient.
User's Location:
Houston, Texas, United States of America
Category:
Temporary Work Visa (H,L)
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| A. |
Thank you for your question. First, congratulations on your newborn. Sounds like your wife was on a maternity leave or leave of absence. Generally, a leave of absence or maternity leave do not cause you to go out of status. However, the question becomes whether there is a termination (you are out of status) or leave of absence (you preserve your status).
According to the USCIS, there is a leave of absence (and thus the employee maintains valid L status) when there is an expectation of continuing employment at the conclusion of the leave of absence. If there is such expectation, even if the leave if extended, the employee is in valid status for the duration of the leave. On the other hand, if there is no expectation of employment, the employee is not in valid status during the leave.
Thus, the critical question becomes what were the terms upon which your wife left for her leave.
So, to answer your questions directly:
1. If your wife left for her leave and she had an understanding with her employer that she would continue her employment after the leave, then she was on a leave of absence which makes her in status for the entire time of the leave. This should be documented, most easily by a letter by her employer affirming that your wife was on a leave, due to medical reasons, between such and such dates.
2. You can submit hospital records to document the leave; however, the strongest evidence would be a letter from the employer documenting, as mentioned in #1 above, that your wife was expected to continue her work upon return from maternity leave, that the leave was approved by the employer, and that she was on payroll (even though she was inactive and was not getting paid). Also, you can attach the most recent pay stub (assuming she is paid bi-weekly and she will get it soon) as a proof that she is back at work and that the expectation of her return to work has been completed.
Hopefully this helps you understand your options. Best of luck and do not hesitate to follow up with questions.
Best regards. |
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Dimitar Michailov
Immigration Lawyer
Capitol Immigration Law Group LLC
(888) 878-4721
www.cilawgroup.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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| Q. |
thanks,
we cant get letter from current employer as she will leave current employer and will move to another employer once h1b is approved. current employer doesnt want to give that letter.
only the following we can submit..
1. payslip before maternity leave
2. certificate or hospital records confirming she's on maternity leave
3. 2 payslips after maternity leave.
she's paid weekly and we already have 2 payslips after maternity leave
are these sufficient enough?
i believe the 2 current payslips proves she's back working, right?
thanks, |
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| A. |
If you cannot get a letter from the employer, then you will have to work with what you have. As I indicated previously, the ideal would be some indication from the employer that at the time of your wife's leave the employer expected or indicated that she will be coming back.
Absent such indication; you can submit all of the items you list in your follow-up. A benchmark of two payslips is generally accepted; including them should be very helpful to prove that your wife was on a leave of absence and now she is back working with the same employer. |
| |
Dimitar Michailov
Immigration Lawyer
Capitol Immigration Law Group LLC
(888) 878-4721
www.cilawgroup.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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