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Critical Immigration Rules For IMG Residents/Fellows (Rules 4-5): H-1B Cap, Compliance Issues

Posted by Ann Badmus | Jan 14, 2013 | 0 Comments

Rule # 4 . . . . H-1B Cap

H-1B Physicians are usually subject to H-1B annual numerical limitations of 65,000 new H-1B visas per fiscal year (except Free Trade Act (FTA) nationals) and 20,000 per fiscal year for persons who hold a U.S. Master's degrees or higher. Because the government fiscal year runs from m October 1 to September 30, an employer may apply for the H-1B visa on April 1 for an employment start date of October 1.

Who is subject to the cap?

  • First time H-1B beneficiaries (employee)
  • Beneficiaries who already hold H-1B status but were employed by cap exempt employers

Cap-exempt employers

  • Universities and non-profit petitioners affiliated with post-secondary educational institutions
  • Government research organizations and non-profit petitioners affiliated with government research institutions
  • For-profit employers who place physician at a non-profit, university-affiliated facility for at least 51% (majority) of work week

Cap-exempt beneficiaries

  • Physicians who are beneficiaries of J-1 IGA waivers

Rule # 5 . . . . H-1B Compliance With Department of Labor and USCIS Rules

H-1B visas are specific to employers and employers must comply with Department of Labor and USCIS rules such as:

  • Employer must pay minimum of prevailing wage or actual wage, whichever is higher, for the entire term of the H-1B
    • – Department of Labor wage data for prevailing wage
    • Salary must be guaranteed at prevailing wage or actual wage – productivity bonuses okay after minimum guarantee
  • Employer must pay ACWIA fee of $750 (25 or fewer employees) or $1500 (greater than 25 employees) unless exempt
  • Physician must be on payroll within 30 to 60 days from H-1B approval date, regardless of pending hospital privileges
  • Physician must be an employee of sponsoring employer, not independent contractor

About the Author

Ann Badmus

Principal and Managing Attorney


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