Take unpaid leave of absence while H4 EAD renewal is pending and current expired?

H4 EAD expired, renewal pending

My current H4 EAD is about to expire on Sep 30 after waiting for 4 months in the H4 EAD renewal queue.

I was thinking if I can take ‘leave of Absence’ starting Oct 1 and join back the same employer once H4 EAD renewal has been approved?

Can this be done?

Unpaid Leave of Absence - H4 EAD renewal pending - NO

There is NO official guidance from USCIS on this topic.

But, the common sense says that employer has to file form I9 for each employee and it can only be filed if you have valid work authorization in USA.

Since, your H4 EAD expires on Sep 30, starting oct 1, your I9 will be invalid without any legal work auth.

‘Leave of absence’ - Problem for employer with I9 validity

‘Leave of absence’ can place your employer in trouble as they can’t prove that you are eligible to work and still have an employee on their payroll.

Terminate employment and Rejoin

The safest option for your employer is to terminate your employment and you can rejoin once you have H4 EAD renewal CARD in your hand.

In a similar situation. My Employer is placing me on leave with no pay, benefits until I get the new card. I checked with my immigration attorney and he said that should be fine. although I am still skeptical.

If your employer is fine, then you should be okay as complying with I-9 requirement is their responsibility too.

Hi Anil,

What would you advise if it’s FMLA situation? Will I still continue to get FMLA (unpaid leave for maternity) after the expiration of H4 EAD? I will not be employed but guessing my employer WILL HAVE TO rehire me when I am back from the leave and have my card.

Appreciate your response.

It depends on your Employer’s policies. Usually, all the employer benefits stop if they terminate Employment.

You have to check with your employer.

Hi @joyascaria
I am in a similar situation where I have to switch from my current H1B visa to H4 dependent on my wife’s H1B
I am also planning to take an LOA till I can get the H1B status back.

Can you please help confirm what you ended up doing?