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Physicians: Many Ways to Cope with the H-1B Debacle
Prior to 1991, physicians were barred from obtaining H-1B status. Today, an increasing number of foreign-born physicians use H-1B visas to complete their medical residencies and fellowships.
By using an H-1B visa, they are not subject to the two-year home residency requirement which is imposed on medical residents and fellows who use J visas.
Is there a downside to using an H-1B visa? Some foreign-born physicians find out that they cannot complete both a residency and a fellowship within the six-month duration of their H-1B status, but otherwise there are few problems.
At least there were few problems until this year when the H-1B cap was exceeded on the first day of filing.
The problem this year is that H-1B physicians who are finishing their residencies and fellowship this summer at "H-1B cap-exempt"
university (and university-affiliated) hospitals may not be permitted to work in "H-1B cap-subject" practices after completing their training.
Fortunately, these physicians should not be in a hurry to purchase a plane ticket back to their countries. They have a number of options to remain in the U.S.:
Unless they have exhausted the six-year duration of their H-1B status, they may continue to work in H-1B status at cap-exempt jobs. This may take the form of continuing to work for their present employers (or for another cap-exempt employer) as fellows, attending physicians, researchers, etc. They may also work for other cap-exempt employers including universities (or university-affiliated or university-related entities), government research organizations or non-profit research organizations. Finally, they may work for cap-subject employers as long as they perform their job duties at a cap-exempt location (e.g., an internist who works for a private company as a hospitalist at a university hospital).
Physicians who are about to exhaust their six years in H-1B status also have legal methods to remain in the U.S. For example, if a physician is about to complete his medical fellowship, he may choose to work in a medically-underserved area. Since worldwide EB-2 is current for May 2007, he may self-petition for a National Interest Waiver (NIW) and simultaneously submit applications for adjustment of status, for a work permit and a travel document. Within 90 days, he may begin working, not on an H-1B, but using an Employment Authorization Document (EAD). In response to our legal victory in the case of Schneider v. Chertoff, the CIS issued a memo on January 23, 2007 graciously extending the right to obtain permanent residence through an NIW to physicians who are specialists.
What if the physician in the above example is born in a country where the EB-2 category is not current (i.e., China or India)? The physician may promise to form a practice, or may obtain a job offer, in an underserved area, and immediately self-petition for an NIW using premium processing. Once this petition is approved in 15 days or less, the physician may apply for a three-year extension of his or her H-1B status under section 104© of AC-21 on the ground that he cannot apply for adjustment of status due to per-country ceilings. Under this scenario, he must use his H-1B status to work for cap-exempt petitioners. Under CIS' January 23rd memo, the physician must explain that he can not start a practice or work for cap-subject employer in an underserved area until he is permitted to obtain a cap-subject H-1B or an EAD.
Of course, there are many other ways to avoid the harsh consequences of this year's H-1B debacle, both for physicians and for other professionals (e.g., O-1 status, E-3 status, TN status, using the Free Trade Agreements with Chile and Singapore, etc.), but we hope that the information that we have listed above will be of assistance to physicians who were not fortunate enough to have their cap-subject H-1B petitions approved this year.
All of this may be great news for medically-underserved areas which have seen their supply of physicians dwindle as more and more foreign-born physicians opt to do their training using H-1B rather than J visas.
We link to the complete text of AC-21 at
http://shusterman.com/toc-h1b.html#1
We link to the CIS' January 23rd memo implementing our victory in Schneider v. Chertoff at
http://shusterman.com/toc-phys.html#3
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