THE H-1B OPTION FOR DOCTORS

There are a number of non-immigrant visas that are available for doctors and researchers. One of the most popular of the non-immigrant visas is the H-1B visa. The H-1B visa allows workers in specialty occupations – areas that normally require a college degree – to work in the US for up to a total of six years. H-1B visas are granted for up to three years and may be extended for up to three more years.

The specialty occupation requirement is usually satisfied if the worker has at least a bachelor’s degree and the position offered requires such a degree. However, in the case of a physician, the applicant must hold a medical degree. Practicing physicians have additional requirements they have to meet, such as possessing a license to practice medicine or being qualified to be licensed to practice medicine in the state of intended employment. For researchers, however, it is sufficient to show an advanced degree, such as PhD. Employers must also demonstrate that they are paying the prevailing wage to the H-1B worker and are also paying at least as much as their other similarly employed workers.

Most doctors prefer the H-1B visa over other visa categories, such as the J-1 category. This is because H-1B visas, unlike J-1 visas, are not coupled with the onerous requirement that the physician return to his or her home country for a two year period after completing time on the J-1 visa. Second, the doctrine of dual intent also applies to the H-1B visa category. This means that the filing of a permanent residency petition will not be a ground for denying H-1B classification. Unlike the H-1B visa, a J-1 visa might be denied if the applicant has also applied for an immigrant visa (green card). Third, the physician is paid the prevailing wage, which may be higher than would be paid to physicians working on J-1 visas (a more detailed explanation of the prevailing wage will follow below).

Residency programs typically favor the J-1 visa over the H-1B visa. There are various reasons why this may be the case including the fact that the application process for J-1 physicians is easier (at least from the employer’s perspective) and there is no minimum salary requirement.

After an offer of employment is made, the H-1B process begins. The first step is for the employer to ensure that the worker will be paid at least 95% of the prevailing wage paid to similarly employed workers in the geographic area where the doctor will be employed. The employer must also not to pay less than the actual wage paid to its other doctors with similar qualifications. The prevailing wage can be determined through a private wage survey or through a State Employment Security Agency (a “SESA”). The benefit of relying on a state wage determination is that it cannot be challenged later by the US Department of Labor. On the other hand, state determinations are frequently not a close match to the job performed and are slow in being issued. It is especially true in cases of physicians where the SESA determines that even a starting physician has to be paid a level II wage for experienced workers.

Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the US Department of Labor (DOL). On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. The form is typically submitted by fax or online, and has to be certified by the DOL before submitting it with the petition to the INS.

The LCA serves two related purposes – ensuring that US wages are not depressed by the hiring of foreign labor and that foreign workers are not exploited. On this document the employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. There are further requirements that are added for certain employers who employ a high number or percentage of H-1B workers (according to specific formulas).

Once the LCA has been filled in, it is submitted to the Department of Labor (DOL). Under the 1990 law, the DOL is supposed to certify the LCA within seven days of submission, but there is little way to enforce this. The reality is that even with a new automated fax-back system, the Department of Labor still frequently takes more (sometimes much more) than seven days to certify an LCA. However, the new LCA online system seems to work very quickly, and many applications are now approved instantly.

Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

The employer must also keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, and evidence that the H-1B worker has been given a copy of the LCA.

The application for an H-1B visa must present evidence that will convince the INS of three basic truths:

This is often the easiest aspect of an H-1B petition to demonstrate for a health care employer. As a general rule, large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker. It is rarely a problem in the health care area, since a hospital can easily demonstrate a need for a physician. But problems maybe encountered if the employer is very small or if the business was recently started. The INS will often request financial documentation to demonstrate the ability to pay the offered salary even if the employer is large.

Demonstrating that a position is in a specialty occupation is typically easy for doctors. The typical physician position requires at least a bachelor’s degree and physicians work in a well-recognized profession. In the case of physicians doing clinical work, the required degree is a medical degree. In the case of a researcher, an advanced degree, such as PhD, is required.

One of the most important parts of an H-1B case is documenting the alien’s education and/or experience, and that he is qualified for the specialty occupation position. A diploma may be submitted if it indicates the alien’s field of study and that field is relevant to the position sought. If the alien did not attend school in the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a US bachelor’s degree. Note that if the alien attended college abroad, and then obtained an advanced degree in the US, no evaluation of their undergraduate degree is required because it is presumed that the US graduate institution would not have admitted the student without at least possessing the equivalent of a bachelor’s degree.

If there are any additional requirements that the alien must meet to take the position offered, documentation that these requirements are met must be submitted. An example would be when a license is required by the state in which the alien will be working.

Physicians working in clinical settings are subject to additional requirements beyond what is normally demanded of H-1B applicants. The physician will have to show that he or she possesses a full and unrestricted license to practice medicine in his or her home country OR that he or she has graduated from medical school.

The physician will also have to obtain the necessary state license (in the state of the intended practice). Some states do not grant licenses until the visa is approved, however. This creates a circularity problem since the visa cannot be issued without the license and the license cannot be issued without the visa. This problem can often be resolved by getting documentation from the licensing authority that the only thing holding up issuance of the license is the visa approval.

The physician engaged in a clinical practice will also have to pass a set of exams to comply with state licensing and INS regulatory requirements. The physician must possess

These requirements do not apply to foreign doctors who graduated from U.S. medical schools or from certain Canadian schools accredited by the Licenciate of the Medical Council of Canada (LMCC). Such applicants only have to show that they have graduated from a U.S. (or Canadian) medical school and have obtained the required state license. Internationally known physicians may be admitted without taking the exams.

Congress has set an annual limit to the number of H-1B visas issued. There is annual limit of 65,000 visas under the Immigration Act of 1990. Different laws temporarily raised the limit, and it is currently 195,000 per year for fiscal years 2001, 2002, and 2003. After 2003, barring future legislation on the annual cap, it will revert back to 65,000.

If the cap is hit a physician might have to wait several months until a visa is available. H-1B applications usually take 2 to 4 months to process provided that visas are available. For an additional $1,000, processing can often be done in less than 2 weeks using the INS’ premium processing program (described below).

Physicians working under State 20 waivers may qualify for an exemption only if their employer is a nonprofit or a government research organization.

If a worker transfers from a cap-exempt position to one that does not qualify for an exemption, the worker will be counted against the cap at the time of the transfer.

Counting the number of H-1B petitions has been a serious problem for the INS, and that is another reason in favor of the premium processing service (explained below).

The maximum authorized stay in the US in H-1B status is six years. Because the initial petition is valid for a maximum of only three years, most H-1B visa holders will want to extend their visa. The process for applying for an extension is virtually the same as for the initial petition. The INS usually will approve the case if the conditions of employment remain largely the same. However, the INS has been known to deny extensions if the second examiner believes that the first approval should not have been granted in the first place. Extensions of their H-1B visa past the six-year limit are allowed in certain cases when an immigrant has been pending for the applicant for over one year.

The INS and the State Department charge various fees at the time an H-1B petition is submitted as well as at the time a visa is issued at the consulate. The INS charges a base fee of $130 as well as $1000 for worker retraining. The $1000 retraining fee must be paid by the employer, though certain petitioners can avoid paying the fee by claiming one of a number of exemptions. Exempt employers can submit a form I-129W requesting the exemption. The consulate will also charge an application fee and a fee to issue a machine readable visa.

2) Nonprofit organizations or entity related to, or affiliated with an institution of higher education; OR

4) The petition is the second or subsequent request for an extension of stay filed by the employer; OR

5) The petition is an amended petition that does not contain any requests for extension of stay; OR

8) The employer is a nonprofit entity which engages in an established curriculum-related clinical training or students register at the institution.

Recently the INS started a premium processing service that is available for H-1B applications. For an extra $1,000 in INS fees, the H-1B petition can now be adjudicated within 15 days. In addition to the very fast turnaround service, the applicant enjoys superior customer service, such as a telephone number that will be answered by a live person, as well as communication via fax or e-mail. Immigration lawyers have generally been very satisfied with the quality of service offered in the premium processing program.

H-1B employees may apply for a change of status from one employer to another if they are maintaining their status in the US. The application process is similar to applying for a brand new H-1B except that the process can be completed in the US without a trip abroad to a US consulate. H-1B employees may also work for more than one employer at the same time as long as a separate H-1B approval notice is obtained for each employer. Part time employment is also permitted.

H-1B visa holders must comply with immigration regulations when switching employers or changing the terms of their employment. An H-1B visa is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by the INS. As noted above, it is possible to work for more than one employer as long as a separate H-1B application is approved for each one. New legislation allows H-1B workers to begin working for a new employer as soon as the new employer files an H-1B petition for the worker (in the past, the worker had to wait for the petition to be approved before he could begin working for the new employer).

Also, the new H-1B $1000 worker retraining fee would be due once again for a new employer (assuming the new employer is not otherwise exempt from the fee).

Finally, a change in the nature of the employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition, such as changing job locations, change in job duties, etc.