The H-1B program allows companies and other employers in the U.S. to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. If the petition is granted, the H-1B visa will be valid for three years and can be renewed for another three years. Many healthcare workers can apply for this visa, including physicians.
Physicians may apply for an H-1B visa to participate in a residency program, teach or conduct research, and work at a healthcare facility. One of the requirements is to pass the three-step examination for medical licensing through the United States Medical Licensing Examination (USMLE). This test examines clinical knowledge, clinical skills, and includes a spoken English assessment.
The H-1B Cap
Due to the high demand for H-1B visas among professionals each year, the U.S. government has implemented a limit on the number of individuals eligible to receive them. Congress has established an annual regular cap of 65,000 for the H-1B category. There are an additional 20,000 petitions allotted to beneficiaries who have earned a U.S. master’s degree or higher, making them exempt from this cap. However, in some cases, a petitioner can file an H-1B petition without going through the H-1B cap.
H-1B Cap-Exemptions Based on the Sponsoring Employer
H-1B cap exemptions for physicians are largely dependent on the sponsoring employer. A healthcare organization, such as a hospital, can be cap-exempt if it meets any of the following criteria:
- It is an accredited institution of higher education;
- It is a nonprofit entity related to or affiliated with an institution of higher education; or
- It is a nonprofit research organization or a local, state, or federal government research organization.
In addition, if a physician is hired by a for-profit organization but will be physically working at a qualifying cap-exempt institution, organization, or entity, then his or her petition can still be filed as cap-exempt. 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 clinical services at a nonprofit charity care clinic that has an affiliation with a local college or university;
- A physician teaching health and medicine courses at a local college; or
- A hospitalist employed by a for-profit medical group providing professional services at a cap-exempt hospital.
Keep in mind, however, that the H-1B exemption generally only exists while the physician remains with the cap-exempt employer.
H-1B Cap-Exemptions Based on the J-1 Home Residency Requirement Waiver
International medical graduates (IMGs) may also use the J-1 visa program to avoid the H-1B cap, but this process can be time consuming and less straightforward. The J-1 visa, also known as the Exchange Visitor Program, allows IMGs to come to the U.S. to pursue graduate medical education or training. However, IMGs who participate in this program are subject to a two-year home-residence requirement (HRR) following the completion of their training. This means that IMGs must return to their respective home countries for two years before they can apply for H or L visas, or for permanent residence (i.e., a “green card”).
Physicians who are unwilling to fulfill the two-year HRR can explore the possibility of obtaining waivers that would exempt them from this obligation. As J-1 nonimmigrant physicians are generally not eligible for the most common waiver of the HRR, a “no objection” waiver issued by their home country, they often pursue an Interested Government Agency (IGA) waiver, such as the Conrad 30 waiver program. Most IGA waivers, including the Conrad 30 program, allow J-1 nonimmigrant physicians to obtain waivers for the HRR if they agree to practice for three years in a health professional shortage area (HPSA) in the U.S. Upon successfully fulfilling the three-year service requirement, these physicians can apply for an H-1B visa without being subject to the annual cap.
While the H-1B cap can still pose a challenge to foreign national physicians seeking to work in the U.S., several of them can qualify for the H-1B cap exemption by working at a qualifying healthcare organization or by utilizing the J-1 program and receiving an HHR waiver. It’s important to note that while cap-exempt H-1B visas don’t have an annual quota, they are still subject to the general H-1B maximum work period of six years, with some exceptions applying.
If you have any questions about H-1B cap exemptions for physicians, contact our office today to set up a consultation with one of our attorneys!