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.