[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Elissa Taub, The Physician Immigration Handbook.]
Of the most confounding areas of the employment-based immigration system in the United States is the limitations placed upon the number of H-1B visas granted annually to professional workers. That antiquated number, 65,000, established nearly 25 years ago has not increased despite the country’s gross domestic product increasing by almost 50 percent over the same time span. Exacerbating this stagnancy, a more globalized economy forces American employers to frequently seek highly specialized talent from abroad in order to remain competitive.
Particularly affected by the H-1B cap are doctors, who rarely see the visas once their training is completed in June, after the cap numbers are generally met. Though unlikely, it is possible for cap-subject employers to file H-1B visas early in April, with a success rate of roughly 30 percent in 2015. For many, however, either licensing cannot be completed in time or the job offer comes too late. Compounding this, many employers simply cannot wait the months or even years that comes with a H-1B cap number.
Though no silver bullet exists for all physicians to solve this issue, strategies exist allowing physicians to bypass the H-1B cap.
Cap Exemption Strategies
How can an employer avoid the H-1B cap?
Claiming cap exemption status is an effective way for employers to attempt to avoid the H-1B cap. Under the Higher Education Act of 1965, nonprofit colleges, and universities offering an associate’s degree or higher are generally cap-exempt. Also, nonprofit research organizations which mainly engage in basic or applied research, governmental research organizations, and nonprofits related to or affiliated with qualifying higher education institutions, or research organizations.
Merely being a nonprofit is insufficient, but many nonprofits fail to realize they qualify. A nonprofit hospital, for example, may have a nursing school at the hospital or an affiliation with a local college bearing the responsibility for providing the training for that school’s students. It behooves an employer to thoroughly investigate all relationships it has with local colleges and research institutions.
Some employers, even for-profit organizations, are eligible to claim cap-exemption status for H-1B employees as long as the employee will work at a cap-exempt institution of higher education or affiliated with nonprofit, informally known as “employed at” cap exemption. United States Citizenship and Immigration Services (USCIS) often investigated to examine the “nexus” between the purpose of the university or nonprofit and the work to be performed by the H-1B worker.
USCIS changed the standard as part of the high-skilled worker regulation which took effect on January 17, 2017. Under this rule, an H-1B petition may be only exempt from the cap based on an employee’s work at a qualifying institution if
- The majority of the worker’s duties will be performed at the qualifying institution, organization, or entity; and
- Such job duties directly and predominantly further the essential purpose, mission objectives or functions of the qualifying institution, organization, or entity.
Potentially qualifying examples of being employees by a for-profit organization at a cap-exempt location include the following:
- A physician staffing a student health center at a local college;
- A physician providing clinical services at a nonprofit charity care clinic that has an affiliation with a local college or university;
- An employer providing funding for research and sending a physician to conduct clinical research at a cap-exempt research institution;
- A physician teaching health and medicine courses at a local college; and
- A hospitalist employed by a for-profit medical group providing professional services at a cap-exempt hospital.
Solely providing the work arrangement is insufficient; it is imperative to document the employer or worksite’s qualification as cap exempt. In the time since the passage of the American Competitiveness in the Twenty-First Century Act of 2000, USCIS has taken numerous inconsistent positions regarding the application of the statute provisions permitting nonprofit employers to claim cap-exemption status based on being “related or affiliated” with a university or nonprofit research institution. U.S. Department of Homeland Security (DHS) established a formal position in the high-skilled worker regulations, which took effect on January 17, 2017. The rule allows nonprofit entities to qualify for the H-1B cap and fee exemptions if they:
- Are connected or associated with an institution of higher education through shared ownership or control by the same board or federation;
- Are operated by an institution of higher education;
- Are attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
- Have a written affiliation agreement with an institution of higher education that demonstrates an active working relationship between the nonprofit entity and the institution of higher learning for the purposes of research and education and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.
The rule should make proving cap-exempt eligibility much easier for non-profit teaching hospitals.
Furthermore, the high-skilled worker rule defined “governmental research organization” for the purpose of claiming cap-exemption status and exemption from the ACWIA filing fees, stating, “a government research organization” includes local, state, and federal government research entities.
A previous USCIS policy permitting any employers which demonstrated cap-exemption status before June 2006 to receive deference in determining cap-exemption status was repealed once the new regulation was issued. Additionally, in October 2017, USCIS put an end to its broader policy of giving deference to prior decisions. It is a good practice for employers and physicians to provide full documentation for all petitions and applications submitted to USCIS whether or not previous submissions were successful.
A different approach which could work is for cap-exempt employers to contract a physician’s services to a non-exempt location or organization. For example. A physician who is employed by a cap-exempt academic medical center may be contracted to provide his or her services at a for-profit clinic with which the academic medical center has a relationship. It is worth noting that in this instance, there must be a clear establishment of the employer-employee relationship with the petitioning entity to qualify for H-1B status.
Can filing a concurrent H-1B visa petition help a physician avoid the H-1B cap?
It is possible for H-1B workers to simultaneously work for multiple employers if they have separate approved H-1B petition for each employer. This arrangement, concurrent employment, can be utilized in “moonlighting scenarios where a full-time worker wants outside part-time work in addition to scenarios in which there are multiple part-time employers.
In May 2008, USCIS laid out its policy pertaining to concurrent H-1Bs. In this memorandum, USCIS notes that any worker whose employment “ceases” with an H-1B ca-exempt employer is subject to the cap, but if an H-1B worker has not “ceased” employment in a cap-exempt position, he or she is not counted toward the cap.
USCIS also addressed the protocol for situations in which the employment of the cap-exempt employer ends after the approval of the second H-1B petition with cap-exempt employment. The new highly-skilled worker regulation which took effect in January of 2017, reversing a previous practice at the agency of allowing employment to continue until the culmination of the I-94 period. Per the regulation, USCIS will now consider ceasing employment with a cap-exempt employer to indicate that it may revoke the approval of the cap-subject employment position.
While the H-`B holder is not automatically out of status, the possibility of the H-1B being revoked without notice is an understandable cause for concern for remaining employed with the cap-subject employer any longer than absolutely necessary.
Concurrent employment may be a viable option for a physician to start working for a cap-subject employer in the time frame after the conclusion of graduate medical training, as long as the teaching hospital extends employment through October 1. Alternatively, a cap-subject H-1B employer can find a second position for a doctor at a cap-exempt employer.
For further reading, including alternatives to the H-1B visa, view Chapter 11 in The Physician Immigration Handbook.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.