H-1B visa holders safe abroad-but long absences may invite US govt scrutiny

H-1B visas can't be cancelled just for staying abroad too long, say experts. But extended absences may raise questions at US ports of entry

 

Can your H-1B visa be cancelled for overstaying in another country? No, say legal experts. But staying away too long can invite scrutiny.

 

Three Indian nationals holding valid H-1B visas were recently refused entry into the United States and had their visas revoked. They claimed on social media that the US Customs and Border Protection officials cancelled the visas on the basis of an extended stay in India, which they claimed was more than 60 days, despite valid documents.

 

However, legal experts say there’s no fixed grace period that applies to H-1B holders staying outside the US.

 

No fixed 60-day rule for absence abroad

 

“There is no period of limitation or cut-off specified,” Palak Gupta, advocate and associate at Jotwani Associates told Business Standard. “The form I-797 from USCIS mentions that a person can enter the US from 10 days before the start of employment, but beyond that, it remains open-ended.”

 

She added, “However, it is advisable to enter within a month or two after the visa is stamped.”

 

Ajay Khatalawala, managing partner at Little & Co, said that while there is no formal deadline to enter the US once a visa has been issued, prolonged absence can cause issues.

 

“If the individual remains outside the United States for many months, immigration officers at the port of entry may closely examine whether the employment relationship is still valid. This is particularly the case if the sponsoring employer has not provided recent pay stubs or employment letters,” Khatalawala told Business Standard.

 

“In such situations, questions may arise about job continuity,” he said. 

 

So when does the 60-day grace period apply?

 

According to US Citizenship and Immigration Services (USCIS), the 60-day grace period applies only within the US, and only after the H-1B holder loses their job.

 

For instance, if someone is laid off on August 1, 2025, and their I-94 remains valid until February 2026, they would have until September 30, 2025, to find new employment, change visa status, or leave the country.

 

The 60-day grace period does not apply if:

 

1. The H-1B holder is outside the US

2. Their I-94 has expired

3. They violate the terms of their visa (such as by working without authorisation)

 

How can a visa be cancelled?

 

According to USCIS, a visa can be revoked if:

 

< The sponsoring employer withdraws the H-1B petition

< The visa holder breaches any H-1B conditions (such as unauthorised work)

< There’s evidence of fraud or misrepresentation

< The visa holder overstays in the US without switching to a new status

 

Crucially, none of these conditions automatically apply to H-1B holders spending extended periods outside the US, unless the authorities believe there is a break in employment.

 

“A US visa is a privilege, not a right,” said a US embassy advisory issued last month. “Screening does not stop after the visa has been issued, and authorities may revoke it if one breaks the law.”

 

Since Donald Trump returned to office, immigration lawyers say there’s a visible shift in treatment of non-immigrant visa holders.

 

“In the last few days, we have all noticed that after the Trump government came into power, they have come up with a new approach towards the future of immigrants and non-immigrants working in the US,” Mohammad Reja, advocate at the Guwahati High Court told Business Standard.

 

“Every perk comes with a cost, and here the cost is that they may be denied further stay,” he said. “We respect our law and sovereignty, and as such, being a reasonable mind, we should be brave enough to accept the law and sovereignty of the US too.”

 

What should Indian H-1B visa holders do if denied entry?

 

“If an Indian H-1B visa holder is denied entry after a long stay abroad, the first step is to identify the reason. This could include lack of employment documents, doubts about the validity of the job offer, or changes in the original petition,” said Khatalawala.

 

“In these cases, the person should contact their employer and get updated paperwork—like a current employment letter, pay slips, or a client confirmation letter if placed at a third-party site.”

 

Khatalawala added that in some cases, a fresh visa stamp may be required if there’s been a material change in employment terms or too much time has passed.

 

Gupta noted that H-1B holders in this position may refile under section 101(a)(15)(H)(i)(b) of the US Immigration and Nationality Act.

 

“The new petition must be filed using Form I-129 with USCIS. This is only allowed if the job remains the same as the one in the original petition. If the person switches employers, then the filing must follow the provisions of section 214 of 8 CFR,” said Gupta.