H1B Cap Exemptions for Physicians07 Oct 2019
A large percentage of foreign nationals who come to work as physicians in the United States do so pursuant to H1B status. Ordinarily, the foreign national must be counted against the H1B cap before that individual is eligible to work in H1B status. This usually means having to go through the H1B lottery process. There are a few exceptions to this general rule, however, providing a means for many physicians to bypass the lottery.
Physicians Can Qualify Under General H1B Cap Exemptions
A petitioning employer is exempt from the H1B cap if any of the following criteria is met.
- It is an accredited, nonprofit institution of higher education.
- It is a nonprofit entity that is related to or affiliated with a qualifying institution of higher education.
- It is a nonprofit research organization or a governmental research organization.
In addition, if an H1B beneficiary is working for a private employer, but will be employed at a cap-exempt entity, the petition may be filed as cap exempt.
While these rules are not specifically designed for physicians, teaching hospitals tend to qualify as cap-exempt employers. Foreign national physicians hired by these employers are able therefore to obtain H1B status without having to go through the lottery system. For the most part, though, the H1B employee is only exempt from the H1B cap while working with that employer. More details on the challenges of moving to a cap-subject employer are available in the MurthyDotCom NewsBrief, Moving from Cap-Exempt to Cap-Subject H1B (14.Jan.2013).
H1B Cap Exemption Based on J-1 Home Residency Requirement Waiver
Many international medical graduates (IMGs) who wish to receive graduate medical training in the United States use the J-1 exchange visitor program. Those IMGs who participate in this program, however, are subject to a two-year home-residence requirement (HRR). This means that, following completion of the training, IMGs must return to their respective home countries for two years before they can apply for H or L visas, or for permanent residence (i.e. a “green card”). Such persons generally are also not allowed to file for any change of status within the United States. This requirement is intended to benefit the home countries by returning qualified physicians to practice there.
Physicians who do not wish to comply with the two-year HRR may be able to obtain waivers forgiving the requirement. Such J-1 physicians are not eligible for the most common waiver of the HRR – a waiver based on no objection by the home country government. They typically, therefore, utilize an interested government agency (IGA) waiver, such as the Conrad 30 waiver program.
Most IGA waivers, including the Conrad 30 program, permit J-1 physicians to receive waivers of the HRR if they agree to practice for three years in a geographic area in the United States that is medically underserved. If the physician obtains a waiver to the HRR based on completion of the three-year service requirement, that individual becomes permanently exempt from the H1B cap.
The United States relies on a large pool of smart, qualified physicians to meet the country’s medical needs. While the H1B cap can still pose a challenge to foreign national doctors seeking to work in the U.S., a fair number of physicians find some welcome relief by qualifying for an H1B cap exemption. Physicians with immigration questions are welcome to contact a Murthy Law Firm attorney at Doctors@murthy.com.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.
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