The Family and Medical Leave Act of 1993 (FMLA) is a federal law that protects the employment rights of workers in the event they have to take time off to deal with a serious health condition, including many illnesses and pregnancy. Under the FMLA, workers generally have the right to take up to twelve weeks of unpaid leave per year to deal with serious health matters. This right is granted to employees if the medical problem in question affects the employee or if a qualified family member of the employee is affected.
In practice, FMLA isn't quite as straightforward as described here. There are various factors that can modify, or suspend altogether, an employee's FMLA rights. It's only reasonable to ask, then, whether H-1B visa holders are entitled to the same rights as other workers with respect to FMLA. The short answer is yes.
What Is an H-1B Visa?
An H-1B visa is a type of work permit intended to allow educated foreign nationals with certain specialized skills to work in the United States for a three-year period (which can be extended to six years, and occasionally longer). It was established and defined by the Immigration and Nationality Act of 1965.
For the most part, an H-1B applicant is expected to have a bachelor's degree or an equivalent. An individual holding this kind of visa does not have the right to general employment in the U.S. An H1-B visa is tied to a specific employer, and the termination of the visa holder's relationship with the named employer requires the visa holder to leave the United States or find another employer.
The H-1B is classified as a “dual intent” visa. This essentially means that, while the visa is primarily intended to provide foreign nationals with temporary employment in the U.S., the holder is allowed to pursue permanent residency opportunities (e.g., get a green card) without violating the terms of the permit. Most U.S. visas do not offer this flexibility.
The H-1B visa should not be confused with the very similar H-1B1 visa, which is designed exclusively for foreign nationals from Chile and Singapore and is not classified as a dual intent visa as is the H1-B.
The H-1B Visa and FMLA
H-1B visa holders are entitled to the same FMLA rights as all other U.S. workers. This means that H1-B employees must be granted the same rights and considerations as all other employees at an organization.
For example, if the employer customarily pays employees who take medical leave, then they must pay the H-1B worker as well. This also means that if the employer is exempt from FMLA coverage, then employees, including the H1-B visa holder, may not be covered by FMLA.
Because the purpose of the H-1B visa is to enable foreign nationals to utilize their expertise for the benefit of the U.S., the government frowns on the practice of placing a visa holder on unpaid leave without good reason. It is extremely important for companies to ensure that their FMLA process complies fully with all legal requirements and that all steps in the process are properly documented.
A company that pressures an H1-B worker into taking FMLA time as a ruse to avoid paying the worker may incur substantial penalties. Similarly, a company that wrongly denies an H1-B worker's FMLA request may find itself in serious legal trouble. If you are an H1-B visa holder and have been forced into or denied FMLA leave, then you should contact the legal team at Barrett & Farahany, LLP, LLC, for a free consultation.