Chapter 10 The H-1B Visa Process

• Jurisdiction: United States

Individuals who will be employed temporarily in the United States in a “specialty occupation” may be eligible for H-1B status. A “specialty occupation” requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Not surprisingly, physicians typically do not have problems meeting this requirement.

However, there are many other complexities associated with H-1B status that do make it critical for physicians interested in the status to plan a strategy carefully. Whether the H-1B is available and whether a wise H-1B strategy exists largely depends both on a physician’s individual situation and long-term plans for working in the United States and the circumstances of a particular employer.

Although the types of positions that might qualify a physician for H-1B status are broad, physicians working in the following types of positions typically use H-1Bs:

• Academic positions involving research and teaching;

• Graduate medical training (residencies and fellowships); and

• Post-training clinical positions.

The basic requirements for H-1B status are mostly the same for each of these employment situations, but the process and availability of H-1B status will vary. For example, while H-1Bs usually are readily available to academic institutions, for-profit employers may have difficulty securing H-1B status for employed physicians.

Necessary Factors

What are the most important factors a physician must consider when seeking employment on an H-1B visa?

1. Are you subject to the H-1B cap?

There is a limit of 65,000 H-1B visas granted each year based on the annual allotment permitted under U.S. immigration law. An additional 20,000 visas are allotted for graduates of U.S. graduate education programs. Residency and fellowship training in the United States do not count as U.S. graduate programs for this purpose, so the vast majority of physicians seeking H-1Bs fall into the main 65,000 cap. Nevertheless, most physicians, who come to the United States to train on an H-1B visa, work at teaching hospitals that are exempt from the H-1B cap. This makes it easy for the physicians to bypass the H-1B cap issue when they enter.

Universities, nonprofit research institutions, and nonprofit organizations affiliate with or related to universities or nonprofit research institutions are exempt from the cap. Most teaching hospitals in the United States fall into this third category because they are nonprofit and affiliated with a medical school. However, there is a growing list of teaching hospitals that are owned by for-profit hospital systems and cannot claim exemption from the H-1B cap.

Knowing whether an employer is subject to the H-1B cap is critical because H-1B numbers in the annual allotment are allocated extremely quickly. In fact, in most recent years, employers have submitted enough petitions to exceed the H-1B cap immediately as the numbers become available, resulting in a lottery to determine who gets the visas.

As noted above, most physicians using an H-1B for training do not need to worry about the cap for those programs. But when a physician completes training and seeks to continue work with a post-training employer, the physician must consider whether the opportunity is subject to the H-1B cap. Consequently, doctors who train on the H-1B need to plan early for their post-training employment.

Most physicians in the United States on J-1 visas for training, who then seek to stay in the United States after training, typically have to switch to an H-1B visa after receiving a waiver of the J-1 home-residency requirement. If the waiver is based on the physician’s commitment to work in an underserved area, then the H-1B cap does not apply.

2. How does the H-1B cap work?

The full supply of visas within the H-1B cap become available every year on October 1, the first day of the federal fiscal year. The law allows an employer to file an H-1B petition on behalf of an employee up to six months prior to the desired start date. Because the supply of visas under the H-1B cap typically are exhausted as soon as they become available, U.S. Citizenship and Immigration Services (USCIS) has set forth a procedure for filing cap-subject H-1B petitions.

In De-cember 2018, USCIS pro-posed a new regula-tion to change the admin-istra-tion of the H-1B cap. The rule would:

1. Re-quire em-ployers to com-plete an online prereg-istra-tion for each intend-ed H-1B cap peti-tion.

2. Re-verse the order of the cap lottery by run-ning the stand-ard cap lottery first and then a second lottery for any remain-ing mas-ter’s cap cases.

3. Pro-vide a 60-day filing period for all select-ed cas-es

As of the publi-cation of this book, the rule is open for public com-ment. It is doubt-ful that the rule will be imple-mented in time for the FY2020 cap that opens in April 2019, and it is unclear wheth-er the pro-posed proce-dure will change, but physi-cians and em-ployers should be aware that the H-1B cap proce-dures de-scribed in this chapter might change in the future.

USCIS will accept H-1B cap petitions during the first five business days of April each year. If, by the fifth business day of April, USCIS has received enough petitions to meet or exceed the cap, the agency will close the filing period. After the fifth business day of April and after logging in all the submitted petitions, USCIS conducts a random lottery to determine which petitions will be receipted and considered and which petitions will be returned to the petitioner in excess of the cap.

In recent years, USCIS has completed the lottery and notification to all successful petitioners by the middle of May. After that time, USCIS begins returning unsuccessful petitions by mail, including the filing fee checks. A petition that is rejected from the cap lottery is not a denial; rather, it is a rejected petition that has no future effect on an employer or beneficiary.

Because of the high demand for H-1B visas, USCIS has conducted a cap lottery in most years since the procedure has been implemented. In 2018, USCIS received 190,098 petitions (94,213 for the standard cap and 95,885 for the master’s cap). In 2017, USCIS received 199,000 petitions. In 2016, the agency received 236,000 petitions; and in 2015, it received 233,000. Because a total of 85,000 H-1Bs are available under the regular and master’s caps each fiscal year, competition for cap H-1Bs is serious, and both employers and employees are advised to consider backup plans, if available.

3. Does your prospective employer have a cap strategy or will it be filing a cap petition (or both)?

Many employers are unaware of the H-1B cap or assume it is not a problem. Some assume they are cap exempt. In any case, an employer needs to have a strategy for obtaining work authorization for an H-1B physician, which often takes careful planning.

For example, some employers may be able to start permanent residency processing early enough so that it will not matter if the doctor secures an H-1B at the outset. Others have relationships with cap-exempt employers to facilitate a cap exemption strategy. For more information on cap exemption strategies, see Chapter 11.

4. Does the job pay the prevailing wage?

Immigration law requires that H-1B visa holders be paid 100 percent of the prevailing wage (the average wage paid to workers at the H-1B’s level in the local geographic area) and at least the actual wage paid to other physicians in the same field at the same level at the same employer.

5. Can the employer demonstrate it has the ability to pay the prevailing wage?

While physicians are being employed more often by large institutions like hospitals, many are still hired by small practices and staffing companies. An employer will need to demonstrate it either has the funds set aside to cover the physician’s salary for a while, or it can present documentation to demonstrate it will have the funds to cover the physician’s salary (like an income guarantee agreement with a local hospital).

6. Is the employer planning to cover the costs associated with the H-1B visa petition?

The U.S. Department of Labor takes the position that employers are obligated to cover all costs associated with the H-1B process, including attorney fees and government filing fees. Employers who are paying a much higher salary than required by law might be in a position to alter a job offer so that the employer covers the immigration costs while still meeting wage requirements.

7. Have you planned out your six years of H-1B time?

The law imposes a six-year limit on the time an individual may be in the United States in H-1B status. Many physicians coming to train in the United States on an H-1B make the mistake of entering long training programs that use up most of the six years of H-1B time allotted under the law. At the end of their training, these H-1B physicians may find themselves with little or no time left of their six years for post-training employment.

Consequently, some physicians feel forced into high risk, expensive strategies, such as applying for a green card in a difficult category, seeking another nonimmigrant status with a high denial rate, or leaving the United States for a year to get a new six years of H-1B time.

For Indian and Chinese nationals subject to per-country limits (see Chapter 14), the situation is even more difficult because obtaining a green card in a short timeframe is extremely difficult. Physicians should reconsider using H-1B status for training programs that last for more than four years.

H-1Bs are “dual intent” visas. Why is that important?

Unlike many other nonimmigrant visa categories, the H-1B is a “dual intent” status, which means that an H-1B visa will not be denied simply because an individual intends to become a permanent resident. The assumption is that if, for some reason, the permanent residency petition is denied, the person would still intend to return home.

Thus...