Representative Image. / iStock photo

In a recent incident at the Abu Dhabi U.S. Preclearance Facility, three Indian nationals holding valid H-1B visas were denied entry to the United States, and their visas were revoked on the spot by U.S. Customs and Border Protection (CBP) officers, where one individual had stayed outside the United States for 2 months and 27 days, and the other two had stayed for more than 3 months. Despite presenting all necessary documentation, including employer verification letters, recent pay stubs, and emergency-related documents, they were found inadmissible and were issued visa revocation orders.

These incidents have once again exposed the uncertain and unpredictable nature of U.S. immigration enforcement at ports of entry, especially for employment-based visa holders who believe that a valid visa stamp secures their entry.

The truth is that under U.S. immigration law, holding a valid visa does not guarantee entry into the United States. A visa merely permits a traveler to appear at a U.S. port of entry and seek admission but does not entitle them to enter. This principle is explicitly stated under Section 221(h) of the Immigration and Nationality Act (INA), which clarifies that possession of a visa does not in itself confer the right of admission. The final determination is made by the CBP officer under the authority of INA Section 235, which governs the inspection process at the border. Every arriving traveler is subject to inspection, and if during this inspection the officer determines that the traveler is inadmissible under Section 212 of the INA, the officer has full authority to deny admission, initiate expedited removal, or permit the traveler to withdraw their application for admission voluntarily.

Grounds for inadmissibility are broad and include reasons such as fraud or misrepresentation under Section 212(a)(6)(C), lack of proper documentation under Section 212(a)(7), criminal grounds under Section 212(a)(2), health-related grounds under Section 212(a)(1), and security-related concerns under Section 212(a)(3). In such cases, CBP officers are empowered by regulation 22 CFR 41.122(h)(3) to revoke a visa immediately at the port of entry if the traveler is deemed inadmissible based on any of these grounds. Once the visa is revoked, it is canceled from the system and cannot be used for future travel unless a new visa is obtained.

The law further supports this broad discretionary power through judicial precedent. Courts have consistently upheld that CBP officers possess wide-ranging authority to make admissibility determinations at the border. In the case of Noh v. INS decided in 2001, the court made it clear that as long as the CBP officer’s decision is based on a facially legitimate and bona fide reason, that decision is not subject to judicial review for individuals who have not been formally admitted into the United States. This is rooted in the entry fiction doctrine, which treats individuals standing at the border or a preclearance facility as not having legally entered the U.S. until they are formally admitted. Consequently, constitutional protections and court oversight do not extend to these travelers at this stage. When a visa is revoked by a CBP officer at the port of entry, there is no judicial review available, as CBP officers have broad discretion to decide whether to admit a person into the United States or not. However, there is an exception when the visa is revoked while the individual is physically present within the United States. In such cases, whether the revocation is based on procedural grounds or substantive grounds, the individual has the right to judicial review, and the decision can be challenged in court.

What is even more concerning is the emergence of what can be called the silent sixty- day rule. Although no official statute codifies this rule, it has increasingly become a standard checkpoint applied by CBP officers. Immigration enforcement trends show that if an H-1B visa holder remains outside the United States for more than sixty to ninety days, CBP may question whether the person has maintained valid H-1B status. Officers frequently ask travelers to present two to three months of recent pay stubs as proof of ongoing employment with their U.S. employer. If the traveler has been abroad for an extended period and cannot produce recent payroll documentation, CBP may conclude that the traveler no longer maintains valid nonimmigrant status, leading to a determination of inadmissibility under Section 212(a)(7)(A) for failure to possess the required nonimmigrant intent or documentation. This practice, although unwritten and unofficial, has started functioning effectively like a rule, leaving many travelers vulnerable to sudden denial and visa revocation without prior warning.

These incidents are a clear indication of the systemic risks associated with the current U.S. immigration framework, especially concerning the discretionary power exercised by CBP officers at ports of entry. The broader implications extend beyond individual cases. The H-1B visa program has been a critical driver of the U.S. economy, providing businesses with access to skilled professionals in technology, healthcare, engineering, and research. When highly skilled professionals, who have followed every rule, obtained legitimate employment, and hold valid visas, are denied entry based on ambiguous enforcement practices, it undermines the very purpose of the visa program. Such practices not only disrupt lives and careers but also discourage global talent from contributing to the U.S. economy, potentially pushing companies to move operations offshore in search of stability.

In the absence of clearer guidelines and consistent enforcement standards, H-1B visa holders must take proactive measures to protect themselves when traveling internationally. It is essential to ensure that they do not remain outside the United States for more than sixty days without a strong and documented reason. Travelers must carry their valid I-797 approval notices, the most recent two to three months of pay stubs, detailed employment verification letters confirming active employment, and, if possible, legal support letters that can help explain their status and address any concerns raised by CBP officers during inspection. Any gaps in employment, unpaid leave without proper documentation, or payroll inconsistencies can become grounds for visa revocation or denial of entry.

These recent events at the Abu Dhabi Preclearance Facility serve as a stark reminder that a visa is not a right; it is a privilege that remains subject to discretionary review at the border. Until the immigration agencies provide transparent guidelines that protect lawful visa holders from arbitrary enforcement, the burden falls entirely on the travelers to be fully prepared. In an increasingly global and competitive economy, the United States cannot afford to create barriers for the very individuals who contribute to its growth, innovation, and prosperity. If this trend continues unchecked, it risks not only damaging lives but also undermining the competitiveness and credibility of the U.S. immigration system itself.

 

(The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of New India Abroad)