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Business Standard
09-07-2025
- Business
- Business Standard
H-1B visa holders safe abroad-but long absences may invite US govt scrutiny
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.
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Business Standard
24-06-2025
- Business
- Business Standard
Indians on H-1B visas denied US entry: Why visas get cancelled, what next
Three Indian nationals holding valid H-1B visas were recently denied entry to the United States at the Abu Dhabi International Airport and had their visas cancelled on the spot by US authorities. The incident took place at the US Customs and Border Protection (CBP) preclearance facility, where immigration checks are completed before travellers board US-bound flights. According to one of the affected workers, all three had spent over two months in India—exceeding what immigration officers considered an acceptable absence. 'We had a particularly tough situation in US immigration in Abu Dhabi. Authorities revoked H-1B visa and denied port entry for three candidates, including me, for staying in India for more than two months,' said one of the workers in a social media post. Despite presenting letters from their US employers and emergency documentation justifying the delays, CBP officials refused them entry, citing regulation 41.122(h)(3), and asked them to return to India. Why the H-1B visa was cancelled The H-1B visa allows US companies to temporarily employ foreign professionals in fields such as IT, engineering, medicine, and business. The visa is tied to a sponsoring employer who must file a petition with US Citizenship and Immigration Services (USCIS), supported by a Labour Condition Application. While the visa itself may remain valid, US immigration officers are allowed to assess whether the individual still holds the job for which the visa was issued—particularly after a long absence. 'An H-1B visa holder is allowed to enter the United States up to 10 days before the employment start date mentioned in the approved Form I-797 petition. There is no formal deadline for using the visa once it has been issued, as long as the visa stamp and petition are valid. However, staying outside the US for many months can trigger questions at the port of entry,' Ajay Khatalawala, managing partner at Little & Co told Business Standard. 'Prolonged periods without entry can raise concerns about job continuity, especially if the sponsoring employer has not provided recent pay stubs or updated letters,' he added. Advocate Palak Gupta, associate at Jotwani Associates, said such delays often become a red flag during inspections. 'Any delay as made by an individual who is seeking employment in US under H-1B visa becomes questionable. The said delay has to be reasonably justified as it creates doubt among customs authorities with respect to: > Validity of visa > Whether the individual has actually secured employment > And if so, whether the said employment is sustaining.' How preclearance facilities work Abu Dhabi International Airport is one of several overseas airports where the US conducts full immigration checks before boarding. Others include Toronto and Vancouver. 'At these facilities, CBP officers have the same authority as those at US airports and may carry out more detailed questioning, especially when the traveller is entering on a work visa like the H-1B after a prolonged absence,' said Khatalawala. He noted that travellers should carry documentation that confirms their job offer is still valid and no material changes have occurred in employment terms. What H-1B holders should do if denied entry 'Common causes include concerns about the continued validity of the job offer, lack of recent employment documentation, or changes to the terms of the approved petition,' said Khatalawala. He advised affected workers to: Contact their sponsoring employer Obtain an updated employment verification letter Carry recent pay slips or a client letter (if working at a third-party site) If the visa is revoked, individuals may refile their H-1B petition under section 101(a)(15)(H)(i)(b) of the INA Act, using Form I-129. 'However, refiling is permitted only if it is for the same job for which the delay occurred. Otherwise, the petition must be filed under the relevant provision of section 214 of 8 CFR,' said Gupta. 'The most effective course of action is to resolve the underlying issues completely before attempting to return to the US,' added Khatalawala. Changing tone in US immigration checks Mohammad Reja, advocate at Guwahati High Court, believes H-1B holders must be more cautious in the current environment. '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. Every perk comes with a cost, and here the cost is that they may be denied further stay,' said Reja. '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,' he added.
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Business Standard
14-05-2025
- Business
- Business Standard
BCI amends rules, restricts foreign lawyers to non-litigious matters
The Bar Council of India (BCI) on Wednesday amended its 2022 Rules, enabling foreign lawyers and law firms to practise foreign law in India on a reciprocity basis. The Council had on May 15, 2023, allowed foreign lawyers and law firms to practise in India on a reciprocity basis, without amending the 2022 Rules. Reciprocal laws are statutes of one country or state that give rights and privileges to the citizens of another country or state if it extends similar privileges to the citizens of the former. "The BCI's 2025 amendments to the 2022 Rules mark a significant shift from the framework that existed in 2023. Previously, foreign lawyers were permitted to advise clients on foreign law in India only on a limited 'fly-in, fly-out' basis, without a formal registration process or clarity on the scope of permissible activities. The 2025 amendments now provide a structured and regulated pathway for foreign law firms and lawyers to operate in India, specifically allowing them to practise foreign law, participate in international arbitration, and offer legal advisory services in non-litigious matters such as contract drafting, mergers, and due diligence provided they do not advise on Indian law or appear in Indian courts," said Ajay Khatalawala, senior managing partner of law firm Little & Co. The amended rules state that foreign lawyers will be restricted to non-litigious matters, where cases are not taken to courts for resolution. This is for areas of foreign law, international law, and arbitration, particularly in the context of cross-border transactions and international disputes. "The BCI has further clarified that foreign lawyers may participate in international commercial arbitration conducted in India, provided such arbitration involves foreign or international law, thereby promoting India as a viable destination for international arbitration without compromising the rights of Indian legal professionals," the Council stated in its release. The Council said the move aims to 'regulate foreign legal practice while safeguarding the interests of Indian advocates'. The newly notified rules enable Indian lawyers and law firms to register as foreign law practitioners abroad, allowing them to expand their practice to foreign law and international law consultancy, without giving up the right to practise Indian law in their home country. The BCI added that this dual registration mechanism offers Indian legal professionals broader international horizon while maintaining their status as advocates under Indian law. The Council has also implemented rigorous registration and renewal requirements for foreign entities, which include documentation related to legal qualifications, no-objection certificates, and formal declarations of regulatory compliance. 'The regulatory framework aims to strike a balance between global integration and protect the interests of Indian legal practitioners by enabling Indian lawyers to access foreign legal markets based on principles of reciprocity,' the BCI said. 'This progresses a long-pending issue. I welcome the change,' said Cyril Shroff, managing partner of law firm Cyril Amarchand Mangaldas. The concept of Indian-Foreign Law Firm seems to be a new one introduced with these rules, said Rohit Jain, managing partner of law firm Singhania & Co. "The preliminary reading implies that an Indian-Foreign Law Firm will be entitled to practise both Indian as well as foreign laws. This category appears to be interesting for foreign law firms to explore as it may open avenues for partnerships with Indian law firms under co-branded services,' Jain said. "JSA welcomes any initiative of the government that deepens and strengthens the Indian legal market's ability to offer sophisticated legal advice to domestic and international clients doing business in India and globally," said Vivek K Chandy, joint managing partner of law firm JSA Advocates & Solicitors.
