The H-1B Cap and International Physicians

Each year at the beginning of April, employers line up like contestants in a race to file H-1B petitions so that they can secure the services of foreign-born professionals.

The H-1B visa provides temporary work status for professionals (including, in some cases, physicians) who are filling jobs that have a minimum requirement of a Bachelor’s degree.

U.S. immigration law permits employers to employ 85,000 new “cap-subject” H-1B foreign-born professional employees each fiscal year. This year, the  U.S. Citizenship and Immigration Services (USCIS) started accepting H-1B petitions subject to the numerical cap on Tuesday, April 1 for workers who will be authorized to start their jobs at the beginning for the government’s 2015 fiscal year, which starts on October 1, 2014.

In a sign that hiring nationwide is increasing, the 2014 cap was reached on April 7th.

What does this mean for physician recruiting professionals?

First, keep in mind that physicians who entered the U.S. on J-1 visas, subsequently obtained a waiver of the two-year home residency rule, and then obtained an H-1B through their employer are not subject to the cap.   

But what about physicians who are completing their medical residencies and fellowships in “cap-exempt” H-1B status? These physicians can be immediately recruited to a “cap-exempt” employer.

Physicians are considered to work at cap-exempt employers in the following five instances:

1. If they work “at” a university. Note they only have to work at the university, not for the university. A physician working at the university who is actually employed by a staffing company such as Cogent or Em Care is considered cap-exempt.
2. If they work at (not necessarily for) a non-profit institution affiliated with a university. 
3. If they work at a non-profit institution related to a university. This category is somewhat difficult to define, but the rule of thumb is that if the institution has been able to petition for cap exempt H-1B candidates in the past it should be able to do so now.
4. If they work for a government research institution, such as the National Institutes of Health (NIH)
5. If they work for a private, non-profit research institution, such as City of Hope.

Keep in mind that a physician who already is in cap-exempt H-1B status is able to switch to another cap-exempt employer.

H-1B “filing season” offers a reminder that with any foreign-born physician candidate, it is a good idea to make sure they have a clear path to a work visa and a green card on the front end of the recruiting process. Readers who have any questions regarding foreign-born physicians they may be working with are welcome to contact me at  carl@shusterman.com or by calling 213-623-4592, extension 0.

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Carl Shusterman served as Trial Attorney with the U.S. Immigration and Naturalization Service (1976-82) and is principal of The Law Offices of  Carl Shusterman, a seven-attorney firm specializing in U.S. immigration law.