You've hired a great provider with stellar credentials. She has an H-1B cap-exempt visa but your job offer does not qualify for cap-exemption. It's too late and too uncertain to apply for an H-1B cap-subject visa. An O-1 extraordinary ability visa could be the solution to hire this outstanding physician.
The O-1 visa is special class of visa for persons who have an extraordinary ability in the sciences, arts, education, business or athletics. Accomplished foreign physicians can use this visa program to work in the United States for an initial period of three years for each new employer, after which this visa may be renewed indefinitely.
To qualify as an “extraordinary ability alien,” the physician must demonstrate “a level of expertise indicating that the person is one of the small percentages who have risen to the very top of the field of endeavor.” Specifically, the physician must be the recipient of either (i) a major, internationally-recognized award or (ii) at least three of the following distinctions:
- The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;
- The physician belongs to professional associations requiring outstanding achievements of their members, as judged by recognized national or international experts;
- The physician has been the subject of articles in major media or trade publications relating to his work;
- The physician has participated on a panel or as a judge of the work of others in his area of practice;
- The physician has made original scientific or scholarly contributions of major significance;
- The physician has written scholarly articles that have been published in professional journals or other major media;
- The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; and
- The physician has commanded a high salary or other compensation.
Given this criteria, the O-1 visa is simply not an option for most physicians. However, for the rare physician who can qualify, this visa is an opportunity to hire the physician while avoiding the precarious H-1B cap issue. The O-1 visa may be a viable alternative in other situations as well. For example, the O-1 visa can be used to avoid the two-year foreign residency requirement of the J-1 visa. Therefore, rather than being restricted to employers who will sponsor them for a J-1 waiver, the extraordinary ability physician may work for any employer willing to sponsor him for the O-1 visa. However, the physician must eventually comply with the two-year foreign residency requirement or obtain a J-1 waiver, if she ever plans to become a permanent resident.
Also, the O-1 visa may be used by the physician who has reached the six-year limitation period of the H-1B visa. In such a case, the physician can extend his employment indefinitely if his employer's O-1 petition is approved.
Unlike the H-1B visa, there are very few employer obligations associated with the O-1. There is no prevailing wage requirement, nor is there any other requirement regarding the salary or benefits to be paid to the O-1 physician. The only similarity to the H-1B is that the employer must pay the reasonable costs of return transportation if it terminates the physician's employment before the expiration of his O-1 status.
Considering the advantages, the O-1 visa can be a viable option to hire that perfect candidate for your practice. For immigration questions about hiring foreign grad physicians for your practice, you are invited to contact Ann Massey Badmus at [email protected], 214-672-2161.
The information provided in this article is intended to help you understand basic issues involved in the immigration process for foreign physicians, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.
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