H1 to H4 and back to H1 again - Pregnant Time off

My wife is working in US in H1B for last 3 years and has valid visa till 2016. She is pregnant and would like to take a break from work for a medical reason and child birth. Current employer A may not take her back on H1 again.

questions

a) If she wants resume to work (i.e H4 to H1B) again, do we need to wait till april cycle and file new H1b?. Current employer may cancel H1B or revoke the petition

b) Else we can file in cap exempt and find a new employer to do COS to H4 to H1 and do an H1 trahnsfer?

c) How long does this process take place?

Please advice me with detailed answers. Thanks in advance

Congratulations on this new addition to the family! Our blessings and good wishes are with both of you. You can do option b but does your wife’s present employer know that it is against federal law to discriminate against an employee seeking maternity leave? They may not be able to conduct business in the United States again should they choose to end your wife’s employment or revoke the H-1B. In fact they should be paying her while she is on the bench. This is the law. Be very careful, don’t pick a fight (or they will find a reason other than pregnancy to end her employment like non-performance) but study your rights in private (www.eeoc.gov) and present facts without malice to present employer.

All the best

Dr. Sandeep Shankar, Colorado Heights University, Denver, CO 80223, USA. www.chu.edu; sshankar@chu.edu

S Shankar is absolutely correct.

It is her right to take time off during pregnancy (upto 1 month before delivery & 2 months post delivery). If she is paying into SDI, she will even be paid (~55% of salary) during this time. She is also eligible for more time off in the form of unpaid leave.

If her H1 will be valid during all of this time, it is best to avail these leave options. Don’t make her go to H4, cuz it’ll again be a task to get back to H1.

But if her H1 expires before her pregnancy or within 2 months after, then you may have to think ogf H4.

Read this for California law: http://siliconvalleymamas.com/2013/03/understanding-maternity-leave-in-california-2013-edition/

Thanks to both of you. She is working in New Jersey. I would like to know more NJFLA policy and federal law about maternity leave options, do you guys have any links which explains the details.

Look up State of New Jersey disability benefits. As catapult said, a pregnant woman is considered temporarily disabled and the State has benefit measures in place to help. If she is eligible (H-1B versus green card versus citizen) regardless of visa status, she can let present employer know that she will get paid at no cost to them. I just don’t want you guys to pick a fight with the employer but it is so illegal to threaten a pregnant woman with loss of employment. In my view this is a criminal act. http://lwd.dol.state.nj.us/labor/tdi/worker/state/sp_pregnancy.html

Best wishes

Dr. Sandeep Shankar, Colorado Heights University, Denver, CO 80223, USA. www.chu.edu; sshankar@chu.edu

Hi I am in the similar boat, the only difference is that I would like to take a long break upto 6 months, which I know my company won’t approve. My visa is valid upto next year end, and if I leave my job this September 2019 and switch to h4, would it be possible for me to get back on h1 b( and recapture my remaining time)?

If yes, then what would be yhe process?

Thanks!