Stay in US on H1B without being paid

Dear Saurabh,

My wife is holding valid H1-B visa and is currently employed in US. She has been on maternity leave for 3 months from Oct 2012 till Dec 2012  and 1 month of LWP (till Jan 2013) and for this 1 month period of LWP it did not require status change from H1 to H4.

She wish to extend the LWP for 2 more months till march 2013, and she will be joining back in first week of April. From Feb till now her  visa status is still H1-B and she is not getting paid by her employer.

1) Is it legal to stay on H1-B status when employer is not paying her? Since from the past 1 month she is in US on H1B and not getting paid, can there be any impact.?

2) Does she needs to get the status changed from H1 to H4. If yes how can it be done? Since she needs to join in next 20-25 days, should we file COS ,  [b]OR[/b] go to Canada and coming back on H4 [b]OR [/b]go to India and come back on H4. Kindly advise what would be the better option for my case..
  1. I think it is ok to not get paid when the person is on leave for valid reasons. So she may be fine, but she should check w/ an attorney to know what kind of documentation she should keep for this period (like medical report, leave of absence letter approved by employer)

  2. If she files COS to H-4 now, then it may not work as then she will have to move to H-1 soon after. So she should check w/ attorney if she is ok on leave (as discussed in #1) and if she is fine then there is no point of moving to H-4.