The Physician Immigration Handbook

Posted on: June 15th, 2016
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[The following is adapted from Greg Siskind’s new book, The Physician Immigration Handbook.]

Cap-Exemption Strategies for the H-1B Visa Category

One of the most baffling aspects of the employment-based immigration system in the United States is its limit on the number of H-1B visas granted each year to professional workers. That number, 65,000, was set nearly a quarter-century ago and has failed to grow even though the country’s gross domestic product per capita is about 50 percent larger than it was when the H-1B cap was initially set. Plus, the economy is much more globalized than it was when the cap was created in 1990, and American employers often need to bring in highly specialized talent from abroad to remain competitive.

The cap particularly affects doctors because H-1B numbers are almost always expended before physicians typically complete their training in June. Cap-subject employers can sometimes file H-1B visas on April 1 and might have a chance (in 2015, that would have been about one in three); but for many, licensing cannot be finished in time or the job offer comes too late. And many employers cannot wait months, or even years, for an H-1B cap number.

While there is no panacea that can solve this problem for all doctors, there are strategies that can work to bypass the H-1B cap.

Cap Exemption Strategies

How can an employer avoid the H-1B cap?

An employer can try to avoid the H-1B cap by claiming cap exemption status. Higher education institutions qualifying under the Higher Education Act of 1965 [1] (generally, nonprofit colleges and universities offering an associate’s degree or higher) are cap exempt, as are nonprofit research organizations that mainly engage in basic or applied research, governmental research organizations and nonprofits related to or affiliated with qualifying higher education institutions, or research organizations.

Simply being a nonprofit, however, is not enough, but some nonprofits may not realize that they, in fact, qualify. For example, a nonprofit hospital may have a nursing school at the hospital. Or they may have an affiliation with a local college and are responsible for providing training to the school’s students. An employer should investigate all of the relationships it has with local colleges and research institutions.

Employers, even those that are for-profit organizations, can claim cap exemption status for H-1B employees if the employee will be spending work hours at a cap-exempt institution of higher education or affiliated nonprofit. U.S. Citizenship and Immigration Services (USCIS) will look to see that there is an actual “nexus” between the purpose of the university or nonprofit and the work to be performed by the H-1B worker. Merely working on the site of an exempt employer is not enough. The petitioner should be prepared to show how the job duties of the doctor will further the mission or purpose of the qualifying institution.

Potentially qualifying examples of being employed by a for-profit organization, but being employed at a cap-exempt location include the following:

  • A physician staffing a student health center at a local college;
  • A physician providing clinical services at a nonprofit charity care clinic that has an affiliation with a local college or university;
  • An employer providing funding for research and sending a physician to conduct clinical research at a cap-exempt research institution;
  • A physician teaching health and medicine courses at a local college; and
  • A hospitalist employed by a for-profit medical group providing professional services at a cap-exempt hospital.

Nonprofit employers trying to claim cap exemption status should expect scrutiny regarding whether they are sufficiently “related or affiliated” with a university or nonprofit research institution. USCIS regulations do not define these terms for cap exemption purposes, but the agency will often apply the definition used to claim exemption from certain H-1B fees. Based on a June 6, 2006, USCIS memorandum, the agency refers to the definition in 8 Code of Federal Regulations §214.2(h)(19)(iii)(B) that requires a nonprofit to be “connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.”

In the past, USCIS would interpret the law more broadly, but in 2010, a number of employers that had filed H-1B petitions successfully for years claiming cap exemption status based on an affiliation with a qualified institution were having their H-1B petitions denied. After a considerable protest was voiced, USCIS agreed in March 2011 to give deference to previously approved relationships, as long as an employer could demonstrate that an H-1B approval was made after its June 2006 memorandum was released. USCIS indicated new guidance would be forthcoming on the subject but nothing has yet been released. In 2015, the Department of Homeland Security released a report on implementing various White House executive actions on skilled immigration; the guidance document was included as being forthcoming.

Another strategy that could work is for cap-exempt employers to contract a physician’s services to a location or organization that is not exempt from the cap. For example, a physician employed by a cap-exempt academic medical center might be contracted to provide services at a for-profit clinic with which the academic medical center has a relationship.

Can filing a concurrent H-1B visa petition help a physician avoid the H-1B cap?

H-1B workers can simultaneously work for more than one employer, as long as each has a separate approved H-1B petition. This arrangement is called concurrent employment; it can be used for “moonlighting” arrangements where there is a full-time employer and the worker seeks outside part-time work, as well as arrangements where there are multiple part-time employers.

USCIS laid out its policy on concurrent H-1Bs in a May 2008, memorandum [2] where it notes that any worker who “ceases” to be employed by an H-1B cap-exempt employer is subject to the H-1B cap. But if an H-1B worker has not “ceased” to be employed in a cap-exempt position, then he or she is not counted toward the cap. But what happens if employment with the cap-exempt employer stops after the second H-1B petition with the cap-subject employer is approved? According to USCIS:

“If USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.”

One important way this policy can benefit physicians is if an employer seeks a concurrent H-1B approval while a doctor is still pursuing graduate medical training. The employer could offer part-time employment with a range of hours between, for example, six and 60 hours a week, with the employer obligated to pay for at least the bottom end of the hourly range even if the doctor is not working.

The start date for the second position could be a few weeks before the training program ends. For example, the start date for the cap-subject employer might be June 3, 2015, and the end date on the first H-1B for the training program could be June 30, 2015. Since a license is a requirement for post-training employment and must be in hand to file an H-1B petition, this strategy could be a problem in those states that require a license.

Even though there may be just a few weeks left on the H-1B time for the cap-exempt employer, the cap-subject employer still can request up to three years of H-1B time or whatever time is left of the six-year maximum H-1B time normally available to the physician. The physician will be able to continue working with the second employer even after employment with the cap-exempt employer ends up until the time the H-1B for the second employer ends. At the time an extension is needed, the doctor will need to deal with the H-1B cap or find another nonimmigrant or immigrant visa option.

Concurrent employment also might be an option where a cap-subject H-1B employer finds a second position for a doctor at a cap-exempt employer. So, similar to the by/at strategy outlined above, if the doctor finds a part-time position teaching at a local college or part-time hours working at a university’s medical center and the doctor has an H-1B petition approved for working directly for that institution, full-time employment with a separate cap-subject employer would be allowed. But note that in such a case, the cap-exempt, part-time employment would need to be approved first and the approval notice for that employment would need to be included with the cap-subject employer’s concurrent petition.

Alternatives to the H-1B Visa

The H-1B visa is often not the only game in town for a doctor stung by the cap. There are a number of other statuses and visas that could be an option, such as E-2, E-3, H-1B1, O-1, and TN.

What are the E-3 and H-1B1 visas?

There are two nonimmigrant visa categories that closely resemble the H-1B but have quotas that rarely over-subscribe. Up to 10,000 E-3s are available to Australians in specialty occupations each year. Up to 6,800 H-1B1 visas are available to Chileans and Singaporeans with 1,400 going to Chile and 5,400 going to Singapore. In each case, the employer must pay the prevailing wage and demonstrate that the position requires at least a bachelor’s degree.

What is the TN visa?

The North American Free Trade Agreement (NAFTA) between the United States, Mexico, and Canada allows certain types of professionals to enter the United States to work and is not subject to annual caps. Its usefulness for physicians is limited because it cannot be used for clinical positions. However, if a physician can line up a teaching or research position that does not involve patient care, then the TN is an option. Also, note that the TN category is not a dual-intent one, so it may present challenges if it is used long term.

What is the E-2 treaty investor visa?

The E-2 visa is available to nationals of several dozen countries that have commercial investment treaties with the United States. If a physician from a qualified country is establishing his or her own medical practice, the physician may be able to seek an E-2 visa if he or she is going to play a managerial or executive role or the position requires “essential skills,” and he or she is investing a “substantial” amount in the practice.

While the category may seem unusual for physicians, a number of years ago, the U.S. consulate in Toronto released a memorandum outlining what it would expect to see in a physician E-2 petition. That memorandum is still useful on how to present an E-2 petition for a doctor:

The Department of State concurs with the Immigration and Naturalization Service in finding that, if the consular officer determines that the investment meets the tests for substantiality and proportionality (see discussion below) and if the consular officer is satisfied that the physician will be the sole manager of the enterprise, then said physician can be issued an E-2 visa. If the applicant is to engage in patient care, he must also provide to the consular officer proof that he has a license from the state in which he intends to practice.

Qualifying funds for E-visa purposes must be more than half of the total value of the enterprise if investing in an existing business, or the amount normally considered necessary to establish a new enterprise.

Marginality, on the other hand, is a separate test that the applicant must overcome to establish entitlement to E-2 status irrespective of how much he has invested.

Two alternate means by which an applicant can demonstrate that the enterprise will not return only enough income to provide for him and his family are: (1) to demonstrate that the U.S. investment will expand employment in the locality of his business or (2) prove that he has substantial income from other sources. If purchasing an ongoing enterprise, he should provide us with its previous and most recent U.S. Corporate Tax audited financial statements, review engagements, payroll register, W-2 and W-4 tax forms. If starting a new venture, he must submit a personal statement of net worth prepared by a certified account accompanied by evidence of other income such as his last personal tax return or the corporate tax returns of his other businesses (if any); investment certificates, bank account balance confirmations, etc.

What is the O-1 alien of extraordinary ability?

The O-1 visa is available to a person who “has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.”

While the category would seem to apply only to physicians with many years of experience, the author has found that USCIS will approve physicians in fellowship programs or without many years in the workforce if they have a strong résumé with multiple accomplishments, such as a number of publications, cutting-edge research, work at top academic medical centers, or have otherwise distinguished themselves in the field. The O-1 approval rate has, for many years, been much higher than the similar EB-1 “extraordinary ability” green-card category, and seeking an O-1 visa may not be as far-fetched as one might assume.

Is it possible to switch to J-1status if a physician enters on an H-1B visa?

From time to time, a physician may face a situation where a cap-exempt employer has lost its cap-exempt status (such as when a nonprofit employer is bought by a for-profit entity). In such cases, switching to J-1 status may be the only option available. The physician would have to deal with getting a J-1 waiver later, but, of course, might have additional H-1B cap exemption options based on meeting the J-1 waiver requirements.

Some doctors on H-1Bs also may seek to proactively switch to J-1 status, even when the employer continues to be cap exempt, precisely because they are confident that a J-1 waiver is a viable option and the post-training position will be cap exempt based on receiving the J-1 waiver. A physician who decides to pursue a longer training track might consider this option rather than burning through most of his or her H-1B time.

What is Temporary Protected Status? What is asylum?

If a physician is from a country that suffers from instability, there may be options available to protect the person from returning. One option might be Temporary Protected Status (TPS), which is made available by the president of the United States from time to time for countries where it would be dangerous for individuals in the United States to return. Physicians from Syria, for example, have been able to remain and work in the United States under TPS status since the country’s civil war was recognized as a basis for TPS designation. TPS status is, as the name connotes, temporary and can expire; however, for some countries, the status has remained for many years.

Doctors who are afraid to return to their countries because of a fear of persecution on account of one’s race, religion, nationality, membership in a particular social group, or political opinion may be eligible for asylum. The eligibility rules are strict but potentially worth exploring if the facts are strong.

Can a physician simply apply for a green card instead?

A physician might completely skip the nonimmigrant options and apply for permanent residency. There are several types of green-card options available to a physician and each come with their own set of rules.

The most common type of green-card process initiated by employers is through the Program Electronic Review Management System (PERM). This process is for a labor certification–based petition where an employer convinces the Department of Labor that the employer has a position available for which a qualified U.S. worker is unavailable. PERM is a time-consuming process and it is not unusual for it to take a year or more to get to a point where the physician could receive employment authorization based on a PERM approval. Furthermore, the EB-2 category under which PERM cases are filed is backlogged for Indian and Chinese nationals and an employment document might not be available for several years after the process is started. On the other hand, an employer who hires a doctor well in advance of the anticipated start date (not unusual in physician recruiting) and where the doctor is not in one of the few nationalities subject to per-country backlogs, the option might be viable. Note that a license must be obtained before the PERM process begins, so PERM is a likely option only for physicians in fellowship training and beyond.

Another common green-card strategy for doctors is to seek a physician national interest waiver (PNIW), which is available to physicians who agree to work five or more years in shortage areas and who obtain the recommendation of an interested government agency. A physician who pursues a green card on this basis often can get an employment authorization card much sooner—potentially in just a few months after filing. But it is also an EB-2 category and per-country limits are a potential obstacle if a doctor is from a country that often oversubscribes (such as India or China). Also, each state and federal agency that sponsors PNIWs has its own set of rules and they can be problematic. For example, some states only sponsor doctors who have received J-1 waivers in their states. Note that if the PNIW option is selected, it still might be possible to get a green card sooner based on a separately filed PERM petition.

There are also green-card options for physicians with exceptionally strong backgrounds like the EB-1 “extraordinary ability” category and the EB-2 national interest waiver category (based on work other than working in a physician shortage area). The two categories have very tough standards and relatively low approval rates. They tend not to be the best options for avoiding the H-1B cap when alternatives have not been exhausted.

Conclusion

The H-1B cap is a serious issue for physicians training on H-1Bs because it can dramatically limit the employment options available when a residency or fellowship is completed. However, with sufficient planning and plenty of time and flexibility on the part of a doctor and employer, there are other options that can salvage the job opportunity.

 

 

[1] Higher Education Act of 1965, Pub. L. No. 89-329 (Nov. 8, 1965), available at https://research.archives.gov/id/299923.
[2] USCIS memorandum, D. Neufeld, “Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the AC21, as amended, and the ACWIA” (May 30, 2008), available at http://1.usa.gov/1QsjFDf.

 

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