H-1B visa cancelled for overstaying. Is there a 60-day rule on overstay period?

The H-1B visa program has a 60-day grace period rule, which is not linked to the overstay period but only to employment of the visa holder.

Published: July 15, 2025 / 08:04 IST
By Sunil Dhawan

Recent incidents at the U.S. port of entry

Recently, three Indians with H-1B visas were denied admission into the United States at the port of entry. The reason cited for the denial and revocation of the U.S. visa was an extended stay in India. U.S. authorities canceled the H-1B visas, and the individuals were instructed to return home, as they had overstayed in their home country for more than 60 days.

But is there a 60-day grace period for H-1B visa holders? Experts clarify that being outside the U.S. for more than 60 days does not automatically cancel an H-1B visa. What matters is whether the visa holder is still actively employed.

“No, just being outside the U.S. for more than 60 days doesn’t automatically cancel your H-1B visa. What matters is whether you’re still actively employed. If your employer continues to keep you on payroll and hasn’t withdrawn your petition with USCIS, you’re still in valid status, even if you’re abroad,”
— Dan Nandan, CEO, Immisupport.com

No codified overstay cancellation rule

“There is no explicit, codified rule in U.S. immigration law that automatically cancels an H-1B visa for staying outside the U.S. for more than 60 days,” explains Dmitry Litvinov, CEO and Founder of Dreem. However, U.S. Customs and Border Protection (CBP) officers have wide discretion in assessing whether an extended absence indicates abandonment of U.S. employment or visa status.

“These incidents suggest that CBP officers exercise significant discretion in assessing whether an H-1B visa holder’s extended absence indicates an abandonment of their U.S. employment or intent to maintain their visa status,” adds Dmitry.

The real meaning of the 60-day rule

The 60-day reference usually applies after employment ends, not when someone is simply outside the country.

If an H-1B worker is unpaid for over 60 days with no official leave of absence, USCIS could treat that as abandonment of H-1B status.
If the employer stops considering them an active employee, it can raise red flags during site visits or petition reviews.

“The 60-day reference usually comes up in the context of a grace period after employment ends, not for someone who’s simply out of the country. Now, if you’ve been unpaid for over 60 days with no official leave of absence or if the employer stops considering you an active employee, then it can raise red flags,” says Dan.

The 60-day grace period under U.S. immigration rules

There is a 60-day grace period under the H-1B visa program, but it relates to loss of employment, not overstaying abroad.

If a nonimmigrant worker’s employment ends, either voluntarily or involuntarily, they and their dependents must depart the U.S. within 60 days, or when their authorized validity ends — whichever is shorter.
If they file an application for change of status or adjustment of status within the 60-day period, they can legally remain in the U.S. until a decision is made.

This allows nonimmigrant workers to continue their job search in the U.S. even after employment ends, as long as a timely, nonfrivolous application is filed.

When can U.S. authorities cancel an H-1B visa?

According to experts, the H-1B visa can be cancelled or revoked under the following circumstances:

Employer formally withdraws the petition.
Violation of H-1B conditions, such as unauthorized work.
Fraud or misrepresentation in the petition process.
Overstay inside the U.S. after H-1B expiry without changing to another status or departing.

But if you are outside the U.S., still employed, and nothing has been withdrawn, you are generally not at risk of cancellation.

“The visa itself can be cancelled or revoked in a few scenarios: if your employer formally withdraws the petition, if there’s any violation of H-1B conditions (like unauthorized work), or if there was fraud or misrepresentation at any stage. Also, if you overstay in the U.S. after your H-1B ends and don’t switch to another legal status or leave the country, that can lead to cancellation, too,”
— Dan Nandan

Industry perspective: Rising legal risks

Varun Singh, MD, XIPHIAS Immigration, notes that the 60-day period has become a legal tripwire in today’s job market.

“In today’s volatile job market, many H-1B professionals are caught off-guard by the hard 60-day clock. What was once seen as a buffer period is now a legal tripwire. Missing this window not only risks visa cancellation, but can also derail long-term U.S. plans, including green card aspirations. At XIPHIAS, we’re seeing a sharp rise in urgent change-of-status and visa transfer requests — underscoring the need for faster legal intervention and real-time compliance awareness.”

Conclusion

The 60-day grace period in the H-1B program relates strictly to employment termination, not being outside the U.S. for extended periods. Visa cancellation usually arises from employer withdrawal, unauthorized work, fraud, or overstaying inside the U.S.

For H-1B workers, understanding this distinction is critical in navigating today’s increasingly strict immigration climate.