2. Ask Visalaw.com for Healthcare Workers

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

Q - I am a physician in my third year of residency training and I am on an H-1B visa. My teaching hospital employer is exempt from the H-1B cap. I have gotten a job with an employer that is a for profit company. When I finish my residency training (June 30^th) there will be no H-1B numbers available. Is there any way to begin working before new H-1B numbers open up on October 1^st?

A- This is a tough question to answer since USCIS has never fully clarified the rules in this type of situation. There are a couple of things to consider. First, there is something called H-1B portability which says that if someone files a change of H-1B employer petition they are permitted to work for the new H-1B employer while the application is pending. The portability rule didn’t really address what happens when someone is at an H-1B cap exempt employer and is switching to a cap subject employer during a time when visa numbers are not available. However, in a letter correspondence between a senior USCIS official and an immigration attorney that has been provided to the American Immigration Lawyers Association, the USCIS official took the position that H-1B portability was available even when a visa number was not. The portability rules also indicate that once a decision is reached on the case, portability ends. That’s because it’s assumed either the applicant was denied or that the H-1B employment would start at that point if the case was approved. The official said he was included to agree that employment should be able to continue until a visa number became available, but that USCIS had to address this in a future rulemaking (which has not yet come). In any case, the letter does not have the force of law and is simply a form of persuasive evidence that can be used in a case. The safest route might be to simply wait to start work until October 1^st.

______________________________

< Back | Index | Next >

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship.  Any reliance on information contained herein is taken at your own risk.