Additional Topics > Strategies for Dealing with the H1B Visa Cap

STRATEGIES FOR DEALING WITH THE H1B VISA CAP

• The current annual limitation on issuance of H1B visas is 65,000. The H1B visa cap for any given year is applicable to a visa (employment) start date of October 1st. H1B visa applications may be filed with the US Immigration Service up to six months in advance of the start date (hence, an April 1st filing date is the earliest for an October 1st start date) 
•  In each of the last several years, the demand for H1B visas has exceeded allowable limits, as noted below 

FISCAL YEAR DATES OF EMPLOYMENT CAP REACHED 

2010	Employment starting October 1, 2009 through September 30, 2010	DECEMBER 2009 (8 months to reach cap)
2009	Employment starting October 1, 2008 through September 30, 2009	APRIL 7, 2008 (7 days to reach cap)
2008	Employment starting October 1, 2007 through September 30, 2008	APRIL 2, 2008 (2 days to reach cap)
2007	Employment starting October 1, 2006 through September 30, 2007	MAY 26, 2006 (2 months to reach cap)
2006	Employment starting October 1, 2005 through September 30, 2006	AUGUST 10, 2005 (5 months to reach cap)

• Most H1B visa filings are for computer professionals – hence, the number of such filings are quite dependent on the state of the US economy (as the economy recovers in 2010, we expect another increase in filings in early April 2010) 
• Some employers are exempt from the H1B visa cap 
• Nearly all hospitals with residency/fellowship programs are exempt from the cap (the hospital must be non-profit and must have an affiliation with a university or college). Also exempt from the cap are universities/colleges and certain non-profit research institutions 
• For Physicians who wish to engage in employment following completion of residency training (typically on/about July1st of any given year) the cap may be a bit problematic, as the earliest an H1B visa petition may be submitted for the physician is January 1st of any given year (since the cap subject filings began the previous April, there is a high probability that the cap will have been reached by this time). Indeed, for the last five years (as noted above), the cap was reached prior to January 1st of each year.

SPECIAL INFORMATION FOR PHYSICIANS COMPLETING TRAINING PROGRAM

The US Immigration Service, fortunately, broadened its definition of cap exempt employers to include not only non-profit employers with university/college affiliation, but also possibly for-profit employers so long as the place of employment is a qualifying institution (i.e. non-profit with university/college affiliation).

Please refer to the following weblink for an explanatory memorandum issued by the US Immigration Service in this area:

http://www.uscis.gov/files/pressrelease/AC21C060606.pdf (This link needs to be updated)

In view of this memorandum, it is often possible for physicians to successfully apply for H1B visas EXEMPT FROM THE H1B VISA CAP so long as the location of their actual employment is a non-profit hospital exempt from the H1B visa cap. We have successfully obtained cap exempt H1B visas for physicians working for private for-profit medical groups, so long as their practice involved either making rounds or performing surgery/procedures at a qualifying hospital.

Contact our office for further details in order for us to evaluate your situation and determine if you may claim exemption from the H1B visa cap in view of the above.

Now… the strategies: 

1. Be aware of the H1B visa cap
2. Be sure to understand how it may be applicable to your situation
3. Contact an attorney to discuss your situation
4. Do not accept a job offer until you understand implications for H1B visa cap
5. For residents/fellows completing training, investigate the possibility of being able to complete training by June 1st (instead of June 30th ) – this would allow you to file for H1B visa for permanent position on December 1st – this earlier filing could be very important in allowing you to be counted under the cap
6. A strong cap-exempt argument can be made for the great majority of physicians who obtain privileges at non-profit affiliated hospitals, even if the employer is a private for-profit medical group H
7. Have a back-up plan