Foreign Medical Residents: Advantages and Disadvantages of the H-1B Visa

December 1st, 2014 4 Min read Foreign Medical Residents: Advantages and Disadvantages of the H-1B Visa Blog
visaAt Ranchod Law, we help many foreign physicians who are looking to live and work in the U.S. Prior to beginning residency, these doctors have two different visa status options: J-1 or H-1B. Both choices have advantages and disadvantages. A physician should carefully consider each option, as they may greatly affect opportunities upon completion of residency. Advantages of the H-1B Visa Physicians in H-1B status are not subject to the two year home residency requirement. As a result, when the physician completes the residency program, he will not require a waiver in order to remain in the U.S. In contrast, if a physician enters on a J-1 visa, he will need to return to his home country for two years at the end of the residency program or obtain a J-1 waiver. If the physician completed her residency program as an H-1B worker, she may pursue lawful permanent residence immediately after the conclusion of the residency program. Again, a J-1 visa holder will need to obtain a waiver if she wishes to pursue lawful permanent residence immediately after the residency program. Moreover, physicians who obtain J-1 waivers based on a sponsorship from an Interested Government Agency Program or based on the J-1 Conrad 30 Waiver may only apply for permanent residency after fulfilling their three year commitment. Disadvantages of the H-1B Visa Disadvantages for the medical facility — In order to petition for the H-1B on behalf of the physician, the medical facility must first file a labor condition application (LCA) with the U.S. Department of Labor (DOL). The LCA is supposed to ensure that the admission of the physician to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Medical Facilities are subject to attestations made in the LCA, which include the obligation to pay the prevailing wage and maintenance of certain public access records. Many medical facilities prefer the J-1 option, as they may find the obligations (and the extremely high filing fees) imposed on the H-1B employer to be onerous. Disadvantages for the physician — An H-1B worker is only permitted to remain in the U.S. in H-1B status for a total of six years. H-1B status is granted in three year increments. At the end of the sixth year, the H-1B worker must find a new status or must return to his home country for at least one year before being allowed to return to the U.S. in H-1B status. Completion of certain residency programs will often cause some physicians to exceed the six-year period allotted by the H-1B. In 2000, Congress enacted the American Competitiveness in the 21st Century Act, which included provisions allowing flexibility of the six-year cap. Generally, an individual is permitted to remain in the U.S. in one year increments beyond the sixth year if her labor certification has been pending for more than 365 days. It is also allowed if an I-140 immigrant petition for alien worker has been approved on the physician’s behalf, but she is not able to file an adjustment of status application solely because her priority date is not yet current, or if an adjustment of status application is pending based on an approved I-140.  In order for the physician to take advantage of these provisions, she must develop an early strategy for taking the necessary steps leading to lawful permanent residence. Even with some of the shorter residencies, after the conclusion of the residency program, the physician will likely have used most of his allotted H-1B time. The physician may have difficulty finding an employer willing to begin immediately taking the steps for lawful permanent residence, and it is possible that the physician may not be in the position to change to a different status. Additionally, if the physician wants to obtain employment via private practice on the remaining time on her H-1B, she would be subject to the annual H-1B cap (65,000 H-1B visas are available each fiscal year, which begins on October 1 of each calendar year; applications are accepted beginning April 1). This cap usually doesn’t apply when the physician is in residency because those working for a non-profit or public institution (or a VA facility) are not subject the 65,000 cap. Lastly, the physician must also meet the licensing and credentialing requirements prior to filing for an H-1B visa while a J-1 visa physician is not subject to these requirements.