H-1B visa holders outside the US are having a tough time battling with the administrative and enforcement agencies. While many are finding themselves stuck in the home country due to a lack of visa stamping, many others are seeing their visa stamping revoked at the airports.
‘Working remotely from outside the US’ has emerged as a prominent reason in the recent revocation of H-1B visa stampings. But are H-1B holders allowed to work remotely? What do Labor Condition Application (LCA) rules say?
Vansh Desai, Immigration Lead, Beyond Border, says, “Yes, but only within strict compliance. H-1B employees may work remotely within the United States if the remote location is properly covered by a certified Labor Condition Application (LCA).”
“If the remote site is within the same metropolitan statistical area (MSA), typically only posting requirements apply. If outside that area, the employer must file a new LCA and usually an amended H-1B petition before work begins there. Remote work outside the U.S. is not governed by the LCA because LCAs apply only to U.S. worksites,” adds Desai.
As far as working remotely within US is concerned, the LCA rules are pretty much clear. But can an H-1B visa be cancelled for working and overstaying in the home country?
“If you’re outside the U.S., you’re not ‘maintaining H-1B status day-to-day’ in the same way, because U.S. status is tied to being physically present in the U.S. The bigger issue becomes re-entry and whether anything about the situation creates an eligibility concern,” says Dmitry Litvinov, Dreem.
“There’s also a separate issue: if the employee is working entirely from abroad on an indefinite basis, the employer-employee relationship underlying the H-1B petition may no longer hold up, which puts the validity of the petition itself at risk — not just the visa stamp,” adds Litvinov.
What visa holders, including H-1B visa holders, could experience at US airports is the prudential revocation of their visas. Without any pre-communication, US authorities may also withdraw a visa if ineligibility or lack of entitlement is suspected, or if the individual does not meet entry conditions, in a procedure known as ‘prudential revocation.’
“The State Department has broad authority to revoke a nonimmigrant visa if it receives information raising eligibility or security concerns, including via provisional revocation while reviewing new information.
So, working remotely from abroad is not automatically ‘grounds for cancellation,’ but if it intersects with compliance or eligibility red flags, the visa stamp can be revoked under that authority. Additionally, when the person attempts to re-enter the US, they face admissibility scrutiny based on the current facts of their situation, not just whether the stamp is technically valid,” adds Litvinov.
Such a visa cancellation is primarily under Section 221(i) of the Immigration and Nationality Act. “Section 221(i) of the INA gives the U.S. Department of State authority to revoke a visa at any time after issuance if the holder is found ineligible or circumstances materially change. It is discretionary and can occur even if the visa is still unexpired. It is separate from 221(g), which relates to administrative processing,” informs Desai.
It is a nightmare for an H-1B visa holder to discover that their visa stamping has been withdrawn. The H-1B status will remain valid even after the visa stamping is removed. “In practice, provisional revocation is not always communicated in advance — a traveler may only discover their visa was revoked upon arrival at a port of entry. Importantly, revocation of the visa stamp does not automatically terminate H-1B status; if the underlying petition and I-94 remain valid, status may be intact, but the revoked stamp cannot be used to re-enter the US,” says Litvinov.
Another significant factor that many H-1B visa holders worry about is being outside of the United States for an extended period of time, typically longer than 60 days. However, there is no explicit rule in U.S. immigration law that automatically cancels an H-1B visa for remaining outside the U.S. for over 60 days. If your employer still has you on payroll and hasn’t withdrawn the petition with USCIS, you maintain a valid status while abroad.
For H-1B visa holders, the 60-day rule arises after job-loss. According to the H-1B visa rules, if a nonimmigrant worker’s employment terminates, either voluntarily or involuntarily, they must leave the United States within 60 days or when their approved validity period expires, whichever is shorter. However, the stay can be extended provided they have filed an application for a change of non-immigrant status or an application for adjustment of status within the 60-day grace period.