Legal Question in Immigration Law in California

Hi,

I am on an H1b visa in the US; I have a 3 year position with a University A (my employer), from Sep 2009 to May 2012. I am taking a personal unpaid leave of absence for the second semester (Jan 2010 - May 2010). My employer has agreed to that, and I will resume working for my employer (A) in Sep 2010. I know such a leave of absence does not cancel my H1b, and is allowed by federal and California law. During my leave, I intend to visit a researcher (with which I am currently collaborating) at another US university - University B, but I will not do any work for this other university B. I will initially be out of US for a couple of months (Jan & Feb), after which I plan to visit university B for 2 or three months. My question is, what is the best way to do this. That is:

-either not require any visa from university B, and re-enter USA on my H1b visa, since I will be still in status (my employer university A will not require cancelation of the petition).

-should I maybe require a B1 - business visa - for this duration? In this case: will my H1b visa have to be canceled at the US embassy when I apply for B1, or maybe will the immigration officer cancel it when I enter the US claiming the B1 status? If it will be canceled, I will be in B1 status not H1b, but I will still be employed by University A. Then, can I use the same paperwork that I currently have from University A to reapply for the visa stamp at a US embassy and get it to return to US in the Fall of 2010? Or would the employer have to file a petition in my name again? (this is what I want to avoid, since it costs money) Will this have any effect on my status in the long run?

Can I come to the US and use a status other than H1b - say B1- leave, and then come back to H1b status?

It is a rather long and maybe more complicated question/situation... Thank you!

M


Asked on 12/11/09, 11:24 pm

1 Answer from Attorneys
Jennifer Brill

I'd need to speak to you in further detail about your plans and the employer's plans. I recommend that you consult with an experienced business immigration attorney before you implement any of the options you discuss, or if there are other options. In general, if you have the H-1B visa in your passport, and your H-1B approval notice, and proof that you are still working at the Employer A, then you would re-enter the U.S. to work for Employer A. If you have no intention to re-enter to actually work with Employer A (rather than be on unpaid leave), then you may indeed need to apply for a B visa (with its time limitations). It is possible that the consular office may then void your H-1B visa stamp, and you would have to later re-apply for a new H-1B visa stamp in your passport to re-enter again using your H-1B approval notice. Of course, you would need to show proof of employment by showing your employer verification letter, and you may have to show more, since you were on "unpaid leave". Again, as the scenario you describe is complicated, I recommend that you talk with an immigration attorney about any of your plans involving your H-1B and/or any other immigrant status. You may phone my office at 415-387-1364.

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Answered on 12/17/09, 1:53 pm


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