Cap Exemptions for IMGs Completing Graduate Medical Training in H1B Status06 Feb 2009
International Medical Graduates (IMGs), who are completing their graduate medical training in the H1B classification, and who seek to undertake employment with U.S. employers in H1B classification, must be mindful of the applicability of the H1B numerical cap. When moving from a cap-exempt H1B to cap-subject employment, there must be an H1B cap number available. This is a complication faced by those IMGs moving from H1Bs issued through university-affiliated hospitals, to private medical practices or other cap-subject employment. This is not an issue for former J-1 physicians who have obtained waivers to work in underserved areas, since they are cap exempt.
H1B Cap Applicability for IMGs
As regular readers of the MurthyDotCom and MurthyBulletin are well aware, the law limits the number of H1Bs each year to 65,000. An additional 20,000 cap exemptions are available for those foreign nationals who hold U.S. masters’ degrees or higher. These limits have not been sufficient to meet demand in recent years, and have resulted in an annual lottery to select the cases that will receive one of the coveted cap numbers or advanced-degree exemption H1Bs. Most IMGs do not qualify for the advanced-degree exemptions, as they do not hold U.S. masters’ degrees or above. Thus, they typically fit within the general cap.
In most cases, IMGs completing their training in H1B classification are employed by institutions exempt from the H1B numerical cap, normally as nonprofit hospitals affiliated with institutions of higher education. As such, they have never been counted against the H1B cap. This is problematic for IMGs because a cap number must be available in order for an H1B holder who has not been counted against the H1B cap previously to move to cap-subject employment.
Cap-Exempt H1B Based on Employment “at” Exempt Institution
One solution to this problem is known as the “at” exemption. H1Bs are cap exempt in many situations where the employment will take place AT a cap-exempt location, even if the employer is not cap exempt. The USCIS issued guidance on this matter in a June 6, 2006 memo, explained in our June 16, 2006 article, USCIS Guidance on H1B Cap Exemptions.
In many cases, IMGs receive offers of employment with medical practices that are cap-subject. However, under the law and as explained in the June 6, 2006 memo, the H1B petitions for such physicians are not cap subject if the duties of these positions occur at cap-exempt institutions. Since nonprofit hospitals affiliated with institutions of higher education are cap exempt, there are many such examples. According to the memo, the statute reflects a congressional intent to exempt foreign nationals who will perform employment that directly and predominantly furthers the essential purposes of these cap-exempt institutions where they will be providing their services.
The work does not have to be performed exclusively at the cap-exempt institution. One of the examples given in the memo references a situation in which 55 percent of the employment is performed at the cap-exempt institution. It is not clear exactly where the limit is with respect to the time spent at the cap-exempt institution. This is a matter that would have to be properly presented in any filing involving work at multiple locations, with emphasis on the nature of the work as furthering the purposes of the cap-exempt institution.
Concurrent Employment Could Provide H1B-Cap Exemption
An additional pathway to cap exemption is possible for IMGs who would like to work for employers who are not H1B-cap exempt, but are able to maintain concurrent employment with their cap-exempt employers. The law provides for an avenue whereby the individuals maintaining H1B employment with cap-exempt employers may also hold concurrent H1B employment with cap-subject employers, without having to be counted against the cap. This was discussed in our July 11, 2008 article, Neufeld Memo of USCIS on H1B/GC Under AC21: Part 2. IMG beneficiaries must maintain employment with cap-exempt employers in order to use this provision.
This avenue is particularly valuable to those IMGs who can benefit from joint appointments with medical schools, hospitals affiliated with medical schools, or other cap-exempt employers on full-time or part-time bases, while concurrently being employed by the cap-subject employers.
The H1B cap is a major hurdle many employers and foreign nationals, including IMGs, contend with every year. This will continue unless Congress increases the number of H1Bs available to U.S. employers. Fortunately, the law provides some avenues that potentially can smooth the road for qualifying IMGs.