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H-1B
VISA
For many physicians and scientists, the H-1B non-immigrant visa is the quickest and easiest solution to obtain work authorization in the U.S. As will be described below, there are two different routes a physician can take to obtain an H-1B visa. First, a physician may obtain H-1B status to come to the U.S. at the invitation of a research institute to teach or conduct research. If the physician will be involved with direct patient care, such contact must be incidental to the teaching or research conducted. Second, a physician may obtain H-1B visa status to engage in clinical work, including as a medical resident or fellow, so long as certain licensing and credentialing requirements are met. With respect to scientists, H-1B visa status is readily available for a number of occupations in the U.S., including researcher, teacher, professor, consultant, and others. Frequently Asked Questions about the H-1B Visa Category
FREQUENTLY ASKED QUESTIONS: H-1B visas are temporary work visas which entitle the holder to work in the U.S. for a particular employer, in a particular job, for a period of up to six years. The H-1B visa is especially suited for professionals, including physicians, scientists, and other individuals who have attained at least a Bachelor's degree in the field. Indeed, the H-1B visa is reserved for those individuals who are seeking to come to the United States to work in a professional or specialty occupation. "Specialty occupation" is defined as an occupation that requires the theoretical and practical application of a highly specialized knowledge. Traditionally, these visas are reserved for individuals who are entering jobs that require at least a four year degree or the equivalent work experience as a minimum requirement for the job. Also, the degree must be related to the field of specialty. In addition to the four year degree, the individual seeking the H-1B must be licensed to practice in the occupation if the state requires such a license. 2. Can I obtain an H-1B as a medical resident or fellow? Yes, so long as you the hospital is willing to sponsor the visa and you meet the necessary qualifications (i.e. ECFMG certified; passage of USMLE Steps 1, 2, and 3; possession of State medical license where required). Please note it is our experience that about 80% of medical residency/fellowship programs agree to sponsor H-1B visas. 3. What is the time frame for H-1B visa applications? H-1B applications usually take between 2-5 months for approval under regular processing, and approximately 10-15 days under premium (expedited) processing. Expedited processing requires the payment of an additional $1000 in filing fees. We typically recommend that our physicians utilize premium processing, especially when a change of visa status requested. An H1B visa application can be submitted as much as 6 months prior to the start date of the position. Our office usually prepares/files H1B visa applications within 2-4 days of receipt of the necessary application documents from both the physician and employer. 4. What is the H1B visa cap? Which employers are considered qualified institutions and thus exempt from the cap? The U.S. Immigration Service has an annual limit of 65,000 H1B visas that can be issued in any given fiscal year (October to October). In recent years, the H1B visa cap was reached approximately 2-3 months following the application period for each year. Since applications for H1B visa can be submitted six months prior to an anticipated start date, and since the fiscal year begins on October 1st of any given year, the H1B visa quota officially opens for applications for H1B visa on April 1st. In recent years, the H1B visa quota was filed within a few months (i.e. by June/July) of the quota opening. This has caused substantial hardship for many physicians who were completing their training in June/July of a given year, as the H1B visa quota may have been reached prior to their completion of training. Exemptions from the cap: The following organizations/employers are exempt from the annual H1B visa cap:
Fortunately, the great majority of hospitals with residency/fellowship programs are exempt from the cap, as they are typically nonprofit and maintain affiliation agreements with universities/colleges. ** Additional important exemption information: Private medical practices and for-profit organizations are not usually exempt from the H1B visa cap, except under the following situation: if the alien beneficiary will be performing all or a portion of the job duties at a qualifying/exempt institution. EXAMPLES: Example 1: HOSPITAL A, a for-profit hospital and research center that would not otherwise be a qualifying institution (i.e. not cap exempt), files an H-1B petition on behalf of a renowned Oncologist who will be a direct employee of the hospital and whose duties will consist of clinical treatment of cancer patients and laboratory research on a new medication to treat liver cancer. HOSPITAL A maintains a relationship with a qualifying nonprofit research organization dedicated to finding a cure for liver cancer, whereby HOSPITAL A occasionally provides resources and data in exchange for access to the non-profit's national database on protocols for treating liver cancer. HOSPITAL A's new Oncologist will spend 55% (i.e., a majority) of her time working on-site at the nonprofit research organization conducting research and laboratory experiments on the new medication to treat liver cancer and accessing the national database. The Oncologist will be performing sophisticated research and laboratory experiments that are not normally conducted by employees of the nonprofit research organization but that nonetheless directly and predominantly further the normal, primary, or essential purpose, mission, objectives or function of the nonprofit organization. HOSPITAL A and the nonprofit entity will collaborate on a joint paper publishing the research. Q: Would the Oncologist qualify for an H-1B cap exemption based on this employment? A: Yes. In this case, the Oncologist's work clearly furthers the overall mission of the qualifying nonprofit research organization and benefits the United States The fact that HOSPITAL A and the qualifying nonprofit entity share a cooperative relationship helps establish a sufficient nexus between the Oncologist's work and the normal, primary, or essential purpose, mission, objectives or function of the nonprofit organization. Further, the Oncologist will spend more than half of her time working physically on-site "at" the qualifying entity. Example 2: A medical fellow in pediatrics has been employed at a qualifying (i.e. cap exempt) nonprofit university medical center for two years in H-1B status. At the end of the fellowship, the doctor will become a member of PRIVATE PRACTICE GROUP B, a private pediatrics practice group which has its primary offices within the university medical center and predominantly trains medical students and treats patients in the medical center. The doctor will be doing exactly the same work that he did during his fellowship, including remaining on the university medical center's faculty, but for reasons related to hospital billing practices and medial malpractice insurance requirements, his technical, and therefore petitioning, employer will be the private pediatrics practice group. Q: Would the doctor qualify for an H-1B cap exemption based on this employment? A: Yes. In this case, the doctor would be exempt from the H-1B cap because the conditions of employment demonstrate that the doctor will be performing the same work that he performed while employed directly by the qualifying university medical center. Thus, the H-1B employment directly furthers the primary mission of the hospital because the doctor will remain on the university medical center's faculty, and will continue to educate and train its medical students and treat patients at the medical center. Due to the complexities of the US Immigration Regulations in this area, we strongly suggest that you contact our law firm with any specific questions in this regard. 5. What is the validity period of an H-1B visa? Under what circumstances can I extend my H1B visa beyond the six-year limit? Under current law, an alien can be in H-1B status for a maximum period of six (6) years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:
6. Can I convert from J-1 to H-1B? Yes. However, some J-1 visa holders must obtain a waiver of the two-year home residency requirement prior to being eligible for H-1B visa. The two-year home residency requirement applies to all physicians undergoing graduate medical training on J-1 visa. 7. What are the current government filing fees for applying for the H1B visa? US Immigration Service filing fees are as follows:
For most medical residency/fellowship applications, the total US Immigration Service filing fee is:
For most for-profit institutions with more than 25 employees, the total US Immigration Service filing fee is:
8.
Are there any particular issues which I should carefully consider relating
to H1B visa issuance for physicians?
9. What is our experience/expertise with H1B visas? Our law firm typically prepares/files approximately 500 H1B visa applications per year. Of these, approximately 300 are for medical residents/fellows, with the remainder being for physicians who have completed their medical training. We have clients in each of the fifty US States, and indeed represent some of the nation's leading hospitals/medical centers with respect to immigration issues. Nearly 100% of our law practice is devoted to physician immigration, and we have more than 20 years of combined experience in the field. |
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Sherman Law Group, P.C. is a leading U.S. law firm with clients in every U.S. State and in more than 75 countries throughout the world. We have significant experience and expertise in handling even the most complex legal issues, and have particular specialization in several areas, most notably Immigration Law and Procedure... (