H1B Visas for Foreign Medical Graduates
Fiscal Year 2010 H-1B filings are just around the corner! We MUST file all cap subject H-1B petitions no later than April 1st. Remember that when we file on April 1st, the earliest start date for the H-1B worker will be October 1, 2009.
An H1B visa is a temporary workers visa allowing those in specialty occupations to work in the United States. H1B visas are granted initially for up to three years, and are renewable for another three years. With some exceptions, H1B visas are limited to six years in duration.
Because medicine is defined as a “specialty occupation,” the H1B visa is a good option for any foreign medical graduate (FMG) seeking residency or fellowship training in the U.S., and planning to remain in the U.S. and practice as a physician at the completion of that training.
The J-1 visa (Education Exchange Visa) also enables FMGs to pursue residency and/or fellowship training in the U.S., and while the J-1 Visa is easier to obtain initially, it comes with a two-year home residency requirement that can be difficult to waive.
Therefore, if your intent is to find a physician job in the U.S. following your residency training, the H1B visa is the best route to take. With an H1B visa, you will be eligible to apply for a Green Card immediately after finishing your residency or fellowship; with a J1 visa, you will not. Keep in mind, however, that obtaining an H1B visa and finding a program willing to sponsor you requires some advance planning. Most FMGs will want to begin this planning prior to completing medical school.
Requirements for getting an H-1B visa as an FMG
Prior to obtaining an H1B visa for a fellowship/residency, the following criteria must be met:
- Graduation from medical school
- An offer from a U.S. fellowship or residency program that agrees to H1B sponsorship. (Many programs prefer J1 visas because the ECFMG handles the processing for them, while H1B processing must be handled by the programs themselves. However, it is estimated that up to 75% of programs do agree to sponsorship. You should ask your programs directly if they will consider H1B sponsorship. Most programs who claim NOT to sponsor H1B visas do so because they are simply uneducated about the process. Often, by explaining the process to them and assuring them that your immigration attorney will expedite the process, you can convince a program to sponsor an H1B Visa.)
- ECFMG certification
- Passage of USMLE Steps I,II & III or FLEX Parts 1 and 2
- State medical license or other authorization to practice medicine in the state of intended employment (Most states require medical residents to have state medical licenses to practice medicine.)
- Reference letters are sometimes required.
Note: Some states do not allow physicians to take the USMLE Step 3 examination before they pursue graduate medical training. In addition, some states won’t issue a medical license without proof of the issuance of a visa. This Catch-22 can sometimes be resolved by obtaining a letter from the state licensing board stating that the only thing standing in the way of the license issuance is the visa itself. Be sure to familiarize yourself with your particular state’s requirements before you get too far into the application process.
Time frame for obtaining the H1B visa
A standard H1B application takes approximately 2-3 months to process. So, if your residency or fellowship program begins on July 1st, you need to take action immediately after your match, unless your employer has already agreed to use expedited processing for you. Visa applications can be expedited if the employer/program pays an extra $1000. With expedited processing, the visa will be approved within approximately 14 days.
Finding physician jobs and H-1B sponsorship in the U.S. after residency or fellowship
After you have completed your residency or fellowship training, you will need to find a position with a physician employer who is willing to sponsor your H1B visa. A ny US employer can sponsor an H1B petition, provided it has an IRS Tax Number, also known as a Tax ID Number (this number is needed to obtain the approval of the Labor Condition Application – LCA).
The main reason that physician employers deny FMGs sponsorship of their H-1B visas is simply that they do not understand what is required of them.
Often it is easier for them to simply say “no” than to take the steps necessary to understand the process.
So how do you overcome this obstacle? Be informed! The more information you can provide to prospective practices and hospitals about what they must do to sponsor an H1B physician, the more comfortable they will feel. If you can ensure him/her that you (and your immigration attorney) will make the process as simple and painless as possible, you will be very likely to find a willing physician employer.
What employers will want to know before hiring a physician with an H-1B visa
There are two main things that physician employers will want to know about what it takes to sponsor an H1B physician: what kinds of fees are required, and what type of paperwork will be involved and/or what conditions they must meet.
What fees are required and who has to pay? The employer is required to pay all of the filing fees to the US Government. The employer is also required to pay the attorney fees in associaition with the H-1b visa petition.
- A nonprofit entity engaged in “established curriculum-related clinical training of students” (this would include residency or fellowship programs, as well as teaching hospitals affiliated with a university);
- Primary or secondary education institutions;
- An employer who is filing for a second extension of stay for an H-1B nonimmigrant;
- Non-profit or governmental research organizations (such as a VA Hospital);
- Institutions of higher educations and related or affiliated non-profit organizations.
Below are the current application fees (subject to change) required for an employer to sponsor an H1B physician:
Base fee: $320
Anti-fraud fee (applicable to all cases): $500
Training fee: $750 if the employer has less than 25 employees; $1,500 if the employer has more than 25 employees
Premium processing fee (optional): $1000
So, this means a total of either $1570 or $2320 depending on the size of the organization, plus another $1000 if the employer wishes to expedite the application (14 days vs. several months).
Who pays these fees? In an ideal situation, the physician employer would pay all of the fees. But just as benefit packages vary from job to job, so do the issues surrounding immigration/visa fees. When interviewing with a prospective employer, you should discuss the fees involved. Perhaps the employer will be willing to take on all the fees, or perhaps they will want you to pay. Perhaps you will negotiate a deal in which you each pay for a portion of the fees. Keep in mind that there will also be attorney fees (discussed below), so you may work it out so that you pay the attorney fees while the employer pays the filing fees.
In some cases, employers are exempt from the H1B application fees. The following employers would apply for exemption:
- What conditions do employers have to meet to sponsor an H1B physician?
- The employer must agree to pay the H1B physician 100% of the prevailing wage paid to similarly employed physicians in the geographic area where the physician job will be. The employer must also be sure that it is not paying less than the actual wage paid to its other physicians with similar qualifications.
- The employer must state that the recruitment of the H1B physician will not adversely affect the conditions of the employer’s US-resident physicians in similar jobs;
- The employer must verify that there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B physicians to be employed at the site of any subsequent strike or lockout;
- The employer must attest that a copy of the LCA form will be given to the H1B physicians and either given to the bargaining representative of physicians in similar occupations or (if there is no bargaining representative) posted in two conspicuous locations for at least 10 days in the place where the H1B physician will be working;
- The employer must agree to maintain records of the LCA and the H1B physician’s employment for inspection by the US Department of Labor.
The employer will begin the H1B petitioning process by filling out a Form ETA 9035 Labor Condition Application (LCA), which is submitted to the US Department of Labor. On this form, the employer must submit the wage to be paid to the physician, along with the prevailing wage, and make the following attestations:
Once the physician employer’s LCA form is approved by the Dept. of Labor, it will be returned to the employer. At that point, there is additional documentation that must be filed with the BCIS. The employer will be asked to submit a letter outlining the physician candidate’s prior education and training, describing the nature of the duties which the physician will be performing, describing the physician job in detail, and also describing the anticipated length of stay and the arrangements for remuneration. A summary of the contract should be included in the company letter.
Finally, there are forms which you (the physician) will fill out which the employer will need to review and sign.
It is the responsibility of the employer to file the H1B visa petition. Applications for H1B visas are “job specific,” which means that for every different physician job or change in your employment situation (ie: you lose your job or change locations), your new employer must file a new H1B visa petition. Each visa is only valid for work with the employer that filed the original petition.
Please note that the H1B visa application does not have to be approved before you accept a new job. It just has to be filed before you can take the job.
How likely is application approval?
The following factors are used to determine whether or not an application will be approved: 1) whether the position is a specialty occupation (which the practice of medicine is); 2) whether the position requires at least a bachelor degree and whether the beneficiary has the required degree or its equivalent; 3) whether employer has the work for the beneficiary to do; and 4) whether it has the financial ability to pay the beneficiary.
These are fairly simple criteria, which means that the approval rate is extremely high for physicians. However, please note that there is now a cap on the number of H1B visas granted each year, which means that timing is very important.
Tips for approaching prospective employers
When contacting prospective physician employers, you should indicate on your CV or cover letter that you are a physician with an H1B visa and will therefore need sponsorship. You should also let the employer know that H1B sponsorship is a fairly straightforward and simple process and that you would be happy to answer any questions the employer may have. You may want to also mention that you will be willing to hire (and pay for) an attorney to ensure that the H-1B sponsorship process goes smoothly.
Immigration attorneys may be paid by either the employer or by the physician. In most cases, it is the responsibility of the physician to pay for those fees. You may, however, try to negotiate to have your employer reimburse you for immigration related expenses. Some employers may agree to pay a lump sum towards your pursuit of a green card as part of your benefits package.
Perhaps if your employer is a large company, they will have their own attorney on payroll who can process your application, in which case you would not have to pay. But if you are retaining your own private counsel, you will be responsible for the attorney fees, which can range from $900 to $1500 for an H1B Visa application. You can use a site such as http://www.martindale.com to find an immigration attorney.
HIB visa cap – bad news for FMG physicians?
Recent legislation put a cap on the number of H1B visas that can be awarded during a given year for all industries, physicians included. The annual allotment of H1B visas is limited to 65,000 with an additional 20,000 cap exemptions for people with advanced degrees (defined as masters’ degrees or above) from U.S. educational institutions.
The H1B visa cap only applies to “for-profit” organizations. Therefore, the cap does not affect residency or fellowship programs. The great majority of U.S. hospitals are also exempt from the H1B visa cap (since they are non-profit and affiliated with US medical schools/universities), which means that many FMG physicians who need sponsorship are able to find opportunities without being subject to the H-1B cap.
Extension, renewal or transferring of an existing H1B visa does not count towards the cap.
Therefore, the only time that H1B physicians who entered the U.S. as H1B residents or fellows will fall subject to the cap is while transferring from their training program (an exempt employer) to a non-exempt employer.
Each new allotment of 65,000 visas begins at the start of each new fiscal year, which begins October 1 st. Employers may begin filing for H1B visas six months before the actual start date of the visa. This means that since the beginning of the fiscal year is October 1 st, employers can begin applying as early as April 1 st in order to have the best chance for approval for that year. Timing is key, as the cap numbers are likely to run out quickly. Therefore, you should begin your job search as early as possible in the final year of your residency/fellowship program in order to have the best odds of finding a sponsoring employer prior to April 1st.
The Employment Gap
Often, physicians complete their residency/fellowship training on H1B visa in an exempt institution and would then like to begin employment in a private practice immediately following completion of training on July 1. If the cap has been reached, obtaining an H1B visa for a for-profit (and therefore non-exempt) employer would not available for a start date prior to October 1. In that case, the physician may apply for (and obtain) an H1B visa for a start date of October 1 based on an application for H1B visa on or after April 1. Yet, there would then be a gap in employment from July 1 to October 1. In this case, you might consider obtaining an H1B visa extension with your present exempt employer for a few months (perhaps as a locum, hospitalist, etc.); or consider initiating a PERM application immediately and applying for a Green Card.
*Whether or not a case falls under the cap is based on the filing date, not approval date. Thus, premium processing does not enhance the chances of being under the cap.
Physicians transitioning from a J-1 visa to an H-1B visa
The foreign physician who needs to change to H1B status after acquiring a J-1 waiver must change to H1B status within 90 days of getting the waiver approval. Therefore, it is important that he/she have all of the required documentation for the H1B in order well ahead of time. Otherwise, the physician may go through the waiver process only to discover that he/she cannot get the H1B. If the J-1 holder goes beyond the 30-day grace period, he/she must then apply for the H1B visa at the consulate. Due to the difficult timing, most J-1 visa holders will apply for H1B status at the same time that their J-1 waiver is being processed.
For physicians, the H1B visa presents you with a great opportunity to train and eventually practice in the U.S., with the potential to remain in the country on a long-term basis. The most important thing to keep in mind with regard to the H1B visa is timing. As long as you are on top of important deadlines and are proactive in your job search, you should meet with success.