H1B Visa and Maternity Leave: Understanding the Process

You’re at your desk, staring at your screen, but your mind is elsewhere. The two pink lines on the test this morning confirmed it—big changes are coming. But then reality kicks in. You’re on an H-1B visa. What happens to your job? Your visa status? Can you even take maternity leave without risking your stay in the U.S.?

The H-1B visa maternity leave process isn’t as straightforward as a regular employee benefit. It comes with legal considerations, employer policies, and potential risks to your visa status. If you’re an expecting parent on an H-1B visa, you need to understand how this works—because one wrong step could affect your ability to stay in the country.

This blog walks you through everything: your legal rights, employer obligations, and what to do if your job is at risk. Let’s break it down so you can plan ahead with confidence.

 

 

What Is the H-1B Visa Program?

The H-1B visa is a non-immigrant work visa that allows U.S. employers to hire foreign professionals for specialty occupations. These jobs typically require at least a bachelor’s degree and specialized skills. Tech companies, healthcare organizations, and financial firms often sponsor H-1B employees.

If you’re on this visa, your stay in the U.S. depends on your job. Losing employment means losing your visa status unless you take immediate action. That’s why understanding how the H-1B visa maternity leave process works is crucial—it ensures you don’t unintentionally violate visa rules.

Key Eligibility Criteria for the H-1B Visa

• Specialty Occupation Requirement – The job must require specialized knowledge, and you need at least a bachelor’s degree in a related field.

• Employer Sponsorship – A U.S. employer must offer you a job and file Form I-129 (Petition for a Nonimmigrant Worker) on your behalf.

• Cap and Lottery System – Most H-1B petitions go through a lottery due to the annual cap of 85,000 visas, with 20,000 reserved for those with a U.S. master’s degree or higher.

Speak with Sweta Khandelwal to understand how maternity leave may impact your H-1B status.

H-1B Visa Regulations on Maternity Leave

Taking maternity leave while on an H-1B visa can feel overwhelming. You might wonder whether unpaid leave affects your status or if your employer has specific obligations. Understanding your rights under U.S. labor laws and immigration rules is crucial to making informed decisions.

• Unpaid Leave Does Not End Your H-1B Status – As long as your employer keeps your position open and considers you an active employee, your visa remains valid. Unpaid leave does not automatically protect H-1B status – USCIS may view extended unpaid leave as a status violation if it is not properly documented.

• Employer-Employee Relationship Matters – If your employer officially terminates your job, your H-1B status ends, and you must find a new sponsor or change your visa status within the grace period.

Maternity Leave Rights for H-1B Visa Holders (The FMLA Act)

As an H-1B visa holder, you’re entitled to certain protections under U.S. labor laws. However, benefits like paid maternity leave depend on the employer’s policies. Unlike permanent employees, H-1B workers might not always receive the same benefits.

The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave for childbirth or medical reasons. However, FMLA applies only if:

• The company has at least 50 or more employees within a 75-mile radius.
• You must have worked at least 1,250 hours in the past year (12 months).

Some states offer additional H-1B visa maternity leave protections beyond FMLA, such as paid leave programs in California, New York, and New Jersey. Employers may also have internal leave policies that extend beyond federal and state requirements.

U.S. labor laws prohibit discrimination against pregnant employees. If a company provides maternity leave or other benefits to American employees, they must offer the same to H-1B workers. Employers cannot fire or replace you, an H-1B employee, just because you take maternity leave.

Maternity Leave Policy: Inside vs. Outside the U.S.

H-1B visa holders have two choices when planning maternity leave: staying in the U.S. or traveling abroad. Each option comes with its own implications for visa status, reentry, and employment rights.

Staying in the U.S. on Maternity Leave

• Your H-1B Status Remains Valid: If the leave is voluntary and properly documented, your visa status is not affected.
• FMLA Protections Apply: If you meet FMLA eligibility, you may take up to 12 weeks of unpaid leave without risking your job.
• Company Policies Matter: Some employers offer paid maternity leave as part of your employee benefits.
• Work Authorization Continues: You can stay in the U.S. legally without working during maternity leave, as long as your H-1B petition remains valid.

Leaving the U.S. for Maternity Leave

• You May Need a New Visa Stamp: If the H-1B visa is still valid, no new stamping is needed for re-entry.
• Reentry Can Raise Questions: At the port of entry, CBP officers may ask about your long absence, and you should be prepared to explain that you were on approved maternity leave.
• Payroll & Benefits May Be Affected: If you are outside the U.S., your employer is not required to pay you, and health insurance coverage may change.

FMLA does not apply if the employee is outside the U.S. as it only applies within U.S. jurisdiction. An employer is not legally required to hold the position unless bound by internal policies.

Which Option is Better?

It completely depends on your preference. If you plan to return to work immediately, staying in the U.S. ensures fewer complications. However, if you wish to spend an extended period abroad, consider speaking to an immigration attorney about reentry concerns.

How long can maternity leave last for H-1B visa holders who are not covered under FMLA?

• State Laws: Some states offer paid maternity leave beyond FMLA.
• Company Policies: Employers may provide additional leave benefits, including short-term disability pay.

Also Read: Guidance on Filing H-1B Amendment Petitions and Processing Times

How to Take Maternity Leave on an H-1B Visa?

Planning your maternity leave while on an H-1B visa requires careful coordination with your employer and HR. Following the right steps can help you maintain compliance and avoid unnecessary stress.

Step 1: Notify Your Employer Early 

Discuss your H-1B visa maternity leave process or plans with HR as soon as possible. This ensures enough time to arrange documentation, benefits, and compliance with company policies.

Step 2: Plan Around Visa Renewals 

If your H-1B visa or petition is expiring soon, consider applying for an extension before taking leave. An expired visa during unpaid leave could create legal issues.

Step 3: Confirm Leave Approval in Writing 

Get official leave approval from HR, including the duration and type of leave. This serves as proof that your leave is voluntary, keeping you compliant with H-1B rules.

Step 4: Stay Updated on Payroll and Benefits 

Check with HR regarding health insurance coverage during unpaid leave. Some employers may allow continued coverage, while others may require alternative arrangements.

Step 5: Plan a Smooth Return 

Returning to work on time ensures compliance. If you need additional leave, discuss options like transitioning to an H-4 visa or finding a new employer before your H-1B status lapses.

Legal complexities can arise if maternity leave isn’t handled correctly. The Law Offices of Sweta Khandelwal can help you stay compliant and plan your leave without risks.

What Are Your Employer’s Responsibilities?

Employers sponsoring H-1B visa maternity leave must follow strict regulations when granting maternity leave. While unpaid leave, such as maternity leave, does not terminate the H-1B status, the employer-employee relationship must remain intact. Here are some responsibilities your employer has to maintain during your maternity leave:  

• Your employer must document maternity leave approvals and payroll records. If the leave is paid, wage records should reflect continued employment. For unpaid leave, USCIS regulations require that employers keep records proving the ongoing employer-employee relationship.
• While FMLA protects job reinstatement, it does not mandate continued benefits. However, some employers may offer continued health coverage under company policies. You should check the benefits package and confirm insurance continuation before taking leave.
• H-1B visa holders must be reinstated in their original or equivalent role after maternity leave. Failure to do so could lead to discrimination claims or non-compliance issues. Employers must also report any employment changes to USCIS, ensuring that the visa status remains valid.

Also Read: Changes and Evolution in the H-2A Visa Program Process

What are the Wage Rules During Maternity Leave? 

• Unpaid maternity leave is allowed, provided the leave is truly voluntary. If the employer forces an H-1B worker into unpaid leave without a valid reason, it could be considered “benching,” which is a violation of Department of Labor (DOL) regulations.
• Maintaining H-1B status during leave depends on proving that the employment relationship remains intact. The employer should not terminate the H-1B holder or withdraw their petition unless the employment is permanently ending.
• DOL regulations on benching vs. voluntary leave: Employers cannot stop paying wages unless the H-1B worker voluntarily requests unpaid leave. If the employer places the worker on unpaid leave without their request, the employer must continue paying the required wage per the labor condition application (LCA).
• Required documentation: Employers must maintain written proof that the employee requested the unpaid leave, that is you. This may include an email request, an official leave application, or a signed agreement outlining the leave period and expected return date.

If you’re unsure whether your employer is following the law about the wage rules, Contact the Law Offices of Sweta Khandelwal for legal advice on your rights.

How to Maintain H-1B Status During Nonproductive Periods?

H-1B visa holders must be cautious during unpaid maternity leave to avoid status violations. Nonproductive periods for the H-1B visa maternity leave process are allowed only if the visa holders are voluntary and properly documented.

• Nonproductive status and H-1B compliance: USCIS allows H-1B workers to take unpaid leave for personal reasons, including maternity leave. However, if the employer places the worker on leave without pay for business reasons, it may violate labor regulations.
• Employer documentation requirements: Employers must keep clear records of written leave requests, email communications, and HR approvals.
• Ensuring visa validity during extended leave: If an H-1B visa holder needs more time off beyond FMLA or company policies, alternative options exist. Applying for an H-4 dependent visa (if married to an H-1B holder) or using the 60-day grace period after employment termination can help maintain legal status.
• Consequences of job termination: If you lose your job during or after maternity leave, you’ll need to find a new sponsor, switch visa status, or leave the U.S. within 60 days. Without a valid petition, remaining in the U.S. could lead to unlawful presence and impact future immigration status.

Also Read: H-2A Visa Process for South African Agricultural Workers

Frequently Asked Questions 

• Can I take unpaid maternity leave on an H-1B visa?

Yes, H-1B visa holders can take unpaid maternity leave as long as the employer-employee relationship remains intact. The leave must be documented as voluntary to comply with Department of Labor (DOL) regulations.

• Will taking unpaid maternity leave impact my H-1B visa status?

No, as long as your employer continues to consider you an active employee and the leave is properly documented. However, extended unpaid leave without employer acknowledgement may raise compliance concerns.

• Does H-1B maternity leave include short-term disability benefits?

Short-term disability benefits depend on your employer’s policy and state laws. Some states offer paid family leave programs, while private insurance may also cover a portion of lost wages.

• What happens if my visa expires while I’m on maternity leave?

If your visa or H-1B petition expires during leave, you may need to apply for an extension or change status before taking time off. Otherwise, your status may lapse, impacting your ability to stay in the U.S.

• I am pregnant on an H-1B visa—does my employer have to provide maternity benefits?

Your employer must follow the same maternity leave policies for H-1B employees as for U.S. workers. Benefits such as paid leave, short-term disability, or health insurance coverage depend on company policies and state laws. According to the EEOC Pregnancy Discrimination Act, employers must treat pregnancy like any other temporary disability, but they are not bound to offer paid leave.

 

 

Conclusion

Taking maternity leave on an H-1B visa requires careful planning and adherence to immigration and labor laws. When properly documented, unpaid leave does not impact your visa status. Employers and employees should collaborate to maintain compliance, ensuring a smooth transition before, during, and after leave.

Need help to understand your rights and obligations? Contact the Law Offices of Sweta Khandelwal for expert guidance on maternity leave and visa compliance. If you are still unsure how your employer should handle your leave, reach out to The Law Offices of Sweta Khandelwal. Also, if you’re considering visa options for extended leave, Sweta Khandelwal can guide you on alternatives like H-4 transitions and extensions.

Disclaimer

Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.