Your Complete Guide to National Interest Waivers and EB1 Green Cards

H-1B FAQs

H-1B FAQs for Physicians and Scientists

What is the H-1B cap?

Immigration law allows the issuance of 65,000 H-1B visas each fiscal year.

In addition, there are another 20,000 H-1B visas available for holders of Advanced Degrees (for advanced learning, includes MD degrees) from a U.S. academic institution.

The H-1B cap was temporarily increased for several years. However, as soon as the cap was returned to 65,000 in 2004, the cap was filled each year. To ensure that they fell within the cap, employers increasingly aimed for the earliest date that an H-1B petition can be filed for the start of the fiscal year, April 1. As a result, in the last two years, the cap was reached on April 1. Because the USCIS received more petitions than available visas (in 2008, the USCIS received 150,000 petitions), the USCIS established a random selection process to fill the cap numbers and returned the remaining petitions as unfiled.

As a safe practice, employers should continue to aim for the April 1 as the filing date for their cap-subject H-1B petitions.

What month of the year do all H-1B petitions need to be filed with the USCIS?

Generally, the earliest that a petition can be submitted is 6 months before the proposed start date of employment. With the H-1B cap being filled each year, the earliest start date of employment is the start of the following fiscal year, October 1. Thus, the first day you can apply for an H-1B visa is April 1. These caps ONLY affect individuals who are seeking NEW H-1B visas, not those who are already in H-1B status and have already been counted towards the cap.

What are the responsibilities for the Employer (Hospital/Medical Facility/Clinic) while filing a H1-B?

The Client must pay the physician the prevailing wage. Clients may follow the wage survey provided by the Department of Labor or use a private survey that meets the requirements set forth by the Department of Labor. The client is also responsible for paying the costs associated with securing an H-1B visa, which includes the government filing fees and legal fees. Also, should the client terminate the H-1B worker’s employment, it is responsible for paying the travel expenses for the worker to return to his or her home country.

What are the amounts of the Government filing fees for an H-1B visa?

The current Governmental Filing Fees are: $1,500 ($750 for employers with fewer than 25 employees), $500 fraud prevention fee and $320 H-1B petition fee. Government filing fees frequently change and you should consult with an experienced Immigration Attorney to ascertain the government filing fees prior to filing your application.

Who is responsible to pay these Government filing fees?

All of the H-1B filing fees and attorney fees must be paid by the employer.

Can a physician who only wants to work part-time qualify for a H-1B visa?

H-1B status may be granted for part-time work.

After completion of a residency program, does the resident need an H-1B to start working?

Answer: Yes, an H-1B visa or another employment related visa is required to work lawfully in the United States.
Answer: If a resident is in the U.S. in J-1 status, he or she would need to change status to H-1B to work at a health care facility. However, to be able to change status, the J-1 resident needs to obtain a waiver. If a resident is in the U.S. in H-1B status, he or she would not need a waiver to work for a health care facility. The physician would need to request a change of employer.

What is the cost for an H-1B employer?

Answer: The H-1B employer is required to pay all costs associated with obtaining an H-1B visa, and the reasonable cost of returning the sponsored worker to his or her home country should employment be terminated. Costs associated with the H-1B visa include payment of filing fees and attorney’s fees.

If a physician comes to the U.S. with a tourist visa, may he or she start working?

Answer: If after entering the U.S., the physician decides to stay and work in the U.S., he or she is allowed to change status to a temporary employment based category. However, to be able to work as a doctor in the U.S., there are a number of requirements that must be fulfilled, and will likely take some time to complete. As a result, it is best to map out a strategy before applying for a change of status.

If the physician is affiliated with a university, would that qualify him to be exempt from the H-1B cap?

Answer: If the health care facility is a non-profit entity affiliated with a University, the physician may be exempt from the H-1B cap.

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