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H-1B and O-1 Visas for Physicians

 H-1B Professional Worker Visas

Currently, up to 65,000 H-1B visas (6,200 for workers from Chile and Singapore, 58,200 for all other nationalities) may be issued each fiscal year for professional workers. The fiscal year begins on October 1 and ends September 30. Because an employer can apply for an H-1B visa up to six months in advance of the anticipated starting date of employment, the USCIS will accept applications for the new fiscal year (October 1) on or after April 1 of the year. In other words, applications can be filed as early as April 1 for an October 1 approval date.

However, some workers are excluded from the cap including physicians who receive a J-1 waiver of the two-year foreign residency requirement and agree to work in a medical shortage area. Also excluded are workers who are employed by universities or colleges or by non-profit organizations affiliated with universities or colleges (“cap-exempt employers”). This is useful for physicians who use H-1B status to complete their residency for such institutions. In addition, the cap only applies to “new employment,” so in general, a person who already has an H-1B and applies for another H-1B with another employer is not subject to the cap.

However, if the worker obtained H-1B status through a cap-exempt employer and then seeks to change employment to an employer that is not cap-exempt, the new application will be subject to the cap. For example, a physician finishes his residency in H-1B status with a university hospital on June 30, 2008. He has a contract with a private facility to start work on July 15, 2008. His new employer will sponsor the H-1B visa but the petition will be counted towards the cap. If the cap has already been reached, the physician cannot work until October 1, 2008, assuming the employer files early enough.

Physicians who completed residency in J-1 status but returned home for two years as required OR who received a hardship or persecution waiver must also be mindful of H-1B cap issues.

In order to qualify for an H-1B visa to practice patient care medicine, the foreign born physician must pass all parts of the USMLE, NBME or FLEX, and the English language proficiency test given by the ECFMG. In addition, the physician must be licensed to practice medicine in her intended state of employment. Usually, this means that the physician must have completed a medical residency in the U.S. However, this does not apply in the case the physician obtains an H-1B visa to complete a U.S. medical residency program. Furthermore, not all foreign born physicians are subject to these requirements. These requirements only apply to foreign medical graduates (FMGs).

For purposes of the H-1B visa, the following foreign born physicians are not considered FMGs:

• Physicians of national or international renown;
• Graduates of U.S. medical schools;
• Physicians not practicing patient care (e.g., medical researchers).

Finally, J-1 medical residents must return home for two years or obtain a J-1 waiver before applying for an H-1B visa.

O-1 Extraordinary Ability Visas

U.S. immigration law provides a special class of visa (the O-1 visa) for persons who have an extraordinary ability in the sciences, arts, education, business or athletics. Accomplished foreign physicians can use this visa program to work in the United States for an initial period of three years for each new employer, after which this visa may be renewed indefinitely.

To qualify as an “extraordinary ability alien,” the physician must demonstrate “a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.” Specifically, the physician must be the recipient of either (i) a major, internationally-recognized award or (ii) at least three of the following distinctions:

The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;

The physician belongs to professional associations requiring outstanding achievements of their members, as judged by recognized national or international experts;

The physician has been the subject of articles in major media or trade publications relating to his work;

The physician has participated on a panel or as a judge of the work of others in his area of practice;

The physician has made original scientific or scholarly contributions of major significance;

The physician has written scholarly articles that have been published in professional journals or other major media;

The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; and

The physician has commanded a high salary or other compensation.

For most physicians, the O-1 visa is simply not an option. However, for the rare physician who qualifies as an “extraordinary ability alien,” there are significant advantages to this type of visa. For example, the O-1 visa can be used to avoid the two-year foreign residency requirement of the J-1 visa. Therefore, rather than being restricted to employers who will sponsor them for an IGA waiver, the extraordinary ability physician may work for any employer willing to sponsor him for the O-1 visa.
However,  the physician must eventually comply with the two-year foreign residency requirement or obtain a waiver, if she ever plans to become a permanent resident. Also, the O-1 visa may be used by the physician who has reached the six-year limitation period of the H-1B visa. In such a case, the physician can extend his employment indefinitely if his employer’s O-1 petition is approved.

NOTE: Immigration law changes frequently. The resources and information provided on this web site are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these pages without seeking the advice of an attorney. To consult with Badmus Law Firm regarding your case, click here.