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Tips for Medical Providers to Navigate the H-1B Cap

Posted by Ann Badmus | Jul 13, 2012 | 0 Comments

Up to 65,000 H-1B visas for new employment may be issued each fiscal year (FY) for professional workers, including medical providers. In general, a person who already has an H-1B and applies for another H-1B with another employer is not subject to the H-1B cap.  Also, some new employment applications are “cap-exempt.”  If a provider is working with a cap-exempt H-1B visa and changes to employment that is not cap-exempt, then the new employer's application will be counted in the cap.

Applications can be filed as early as April 1 so that a provider can start work on October 1. On June 11, 2012, the H-1B cap for FY2013 was reached nearly 3.5 months before the start of the fiscal year.  The situation next year might be the same or worse.  Here are a few tips to work around the H-1B cap this year or avoid losing out for next year.

1.         J-1 physicians applying for a J-1 waiver are exempt from the H-1B cap permanently.  Physicians who receive a J-1 waiver of the two-year foreign residency requirement by agreeing to work in a medical shortage area are exempt for each H-1B employment. If you hire an H-1B physician who received a J-1 waiver in the past and is changing to your employment, the H-1B cap does not apply.

2.         Determine if the H-1B employment might qualify for cap-exemption.  Employers that are post-secondary educational institutions such as universities and colleges (including two-year technical schools) and their non-profit affiliates are exempt from the H-1B cap. Employers that are nonprofit research organization and government research organizations are also exempt.  And, providers who will work at the locations of these organizations even though actually employed by for-profit practices are cap-exempt.

3.         Hire early and apply early. If you contract early enough, you increase your chances to win an H-1B visa for your provider.  For example, you sign an H-1B cap-exempt physician just starting the final year of his fellowship training, which he completes on June 30, 2013.  Since you are not a cap-exempt employer, your H-1B application will be subject to the H-1B cap.  If your provider is licensed in your state, apply in April 2, 2013 when the H-1B visa race begins.  The later you wait, the less likely the application will succeed.

4.           Find out if other visa options are available. The O-1 visa or even a permanent residence (green card) application for your provider could be viable alternatives to the H-1B visa.  To find out, consult with an immigration attorney who has extensive experience working with medical providers.

For further information, you are invited to contact Badmus Law Firm.

About the Author

Ann Badmus

Principal and Managing Attorney


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