The US. Citizenship and Immigration Service (USCIS) imposes an annual H-1B cap of 58,200 (congressional cap of 65,000 less 6,800 set aside for workers from Singapore and Chile by the Free Trade Act). In addition, USICS exempts from the H-1B cap 20,000 aliens with a U.S. – earned master’s or higher degree. Other exemptions to the cap are available to aliens who are currently in H-1B status or who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.
Medical Professionals and Strategies Regarding H-1B Transfer Cap Issues:
The limited amount of H-1Bs available each fiscal year poses a wide range of problems to U.S. employers and may have lasting effects on aliens. Many foreign national physicians face unique challenges regarding the H-1B cap upon completion of their residency or fellowship or when they attempt to enter the job market by accepting a private practice position (for example, in the context of someone moving from an employer that is cap exempt to one that is not).
In such cases, a “cap gap” problem may arise if the USCIS improperly interprets INA 214(g)(6), which states that an alien who ceases to be employed by an exempt employer and has not been previously counted should be counted the first time the alien is employed by a non-exempt employer. My opinion, is that INA 214(g)(6) does NOT block such a transfer as long as it submitted as an application to extend status. To the contrary it is my opinion that the numerical restrictions only apply when new H-1 status is sought, that is when the applicant is applying for a change of status to H-1B from a different nonimmigrant status such as the H-4 or B-2 or when consular notification is requested rather than extension of H-1B status.
The basis for this view is a precise reading of the statutory language of INA 214(g) and numerous explicit directives issued by USCIS. Specifically, INA 212(g) holds that the numerical limitation only apply to those who are being “provided” H-1B status, not to those already in such status and seeking its extension.
Therefore, it is my belief that a physician who is finishing a residency or fellowship and going into private practice (not cap exempt) MAY apply for a change in previously approved employment so long as the physician applies for an extension of his H-1B from within the US (not through consular processing). Of course, this strategy alone can be unreliable and can often result in a gap in status. It is often the case that a physician whose H-1B expires on June 30 and is approved for an H1B with a new employer (subject to the cap) on October 1 finds that he is suddenly without status for the period June 30 to October 1. In such cases, aliens should consider changing their status to H-4 or to B-2 in order to prepare and take the Board exams. In addition, it would be wise to extend an exempt H-1B to cover the July to October gap. Foreign nationals should be aware that a temporary extension with the H-1B exempt employer is possible even where the physician will provide services a few hours per week. Otherwise, physicians who are not able to pursue the above options may be forced to leave the country until they can return in H1B status on October 1.
Another excellent option to avoid the “cap gap” problem is the NIW/HPSA immigration strategy. An NIW/HPSA is an immigrant petition in which the alien agrees to serve as a primary care physician (unless employer is a VA) for a five-year period in an underserved area. The benefit of such an application is that the alien may be able to file an I-485 adjustment of status immediately and work authorization (as long as such is not prohibited by retrogression in the EB-2 category). This allows the applicant and his or her derivative family members to receive employment and travel authorization for the duration of the pending application and it prevents the alien from falling out of status. In addition, many foreign nationals fear this type of application because they do not want to commit to one employer for such a long period of time. However, the terms of employment can allow the five year contract to terminate at will or by giving due notice. The alien may not indeed actually need to complete the five year commitment either. This strategy can be supplemented by an independent immigration strategy such as a labor certification or a self sponsored EB-1 which if successful would allow immigration to complete in a shorter time period.
In many circumstances, physicians may pursue other avenues such as the O-1 or EB1/NIW petitions.
Although navigating through the transfer process is a meticulous one when the H-1B cap is an issue, physicians may gain comfort in the fact that options and relief are available to their unique challenges.