| The US. Citizenship and Immigration Service | | | | processing). Of course, this strategy alone can be |
| (USCIS) imposes an annual H-1B cap of 58,200 | | | | unreliable and can often result in a gap in status. It |
| (congressional cap of 65,000 less 6,800 set aside | | | | is often the case that a physician whose H-1B |
| for workers from Singapore and Chile by the | | | | expires on June 30 and is approved for an H1B |
| Free Trade Act). In addition, USICS exempts | | | | with a new employer (subject to the cap) on |
| from the H-1B cap 20,000 aliens with a U.S. - | | | | October 1 finds that he is suddenly without status |
| earned master's or higher degree. Other | | | | for the period June 30 to October 1. In such |
| exemptions to the cap are available to aliens who | | | | cases, aliens should consider changing their status |
| are currently in H-1B status or who will be | | | | to H-4 or to B-2 in order to prepare and take the |
| employed at an institution of higher education or a | | | | Board exams. In addition, it would be wise to |
| related or affiliated nonprofit entity, or at a | | | | extend an exempt H-1B to cover the July to |
| nonprofit research organization or a governmental | | | | October gap. Foreign nationals should be aware |
| research organization. | | | | that a temporary extension with the H-1B |
| Medical Professionals and Strategies Regarding | | | | exempt employer is possible even where the |
| H-1B Transfer Cap Issues: | | | | physician will provide services a few hours per |
| The limited amount of H-1Bs available each fiscal | | | | week. Otherwise, physicians who are not able to |
| year poses a wide range of problems to U.S. | | | | pursue the above options may be forced to leave |
| employers and may have lasting effects on aliens. | | | | the country until they can return in H1B status on |
| Many foreign national physicians face unique | | | | October 1. |
| challenges regarding the H-1B cap upon completion | | | | Another excellent option to avoid the "cap gap" |
| of their residency or fellowship or when they | | | | problem is the NIW/HPSA immigration strategy. |
| attempt to enter the job market by accepting a | | | | An NIW/HPSA is an immigrant petition in which |
| private practice position (for example, in the | | | | the alien agrees to serve as a primary care |
| context of someone moving from an employer | | | | physician (unless employer is a VA) for a |
| that is cap exempt to one that is not). | | | | five-year period in an underserved area. The |
| In such cases, a "cap gap" problem may arise if | | | | benefit of such an application is that the alien may |
| the USCIS improperly interprets INA 214(g)(6), | | | | be able to file an I-485 adjustment of status |
| which states that an alien who ceases to be | | | | immediately and work authorization (as long as |
| employed by an exempt employer and has not | | | | such is not prohibited by retrogression in the EB-2 |
| been previously counted should be counted the | | | | category). This allows the applicant and his or her |
| first time the alien is employed by a non-exempt | | | | derivative family members to receive |
| employer. My opinion, is that INA 214(g)(6) does | | | | employment and travel authorization for the |
| NOT block such a transfer as long as it submitted | | | | duration of the pending application and it prevents |
| as an application to extend status. To the | | | | the alien from falling out of status. In addition, |
| contrary it is my opinion that the numerical | | | | many foreign nationals fear this type of application |
| restrictions only apply when new H-1 status is | | | | because they do not want to commit to one |
| sought, that is when the applicant is applying for a | | | | employer for such a long period of time. |
| change of status to H-1B from a different | | | | However, the terms of employment can allow |
| nonimmigrant status such as the H-4 or B-2 or | | | | the five year contract to terminate at will or by |
| when consular notification is requested rather than | | | | giving due notice. The alien may not indeed |
| extension of H-1B status. | | | | actually need to complete the five year |
| The basis for this view is a precise reading of the | | | | commitment either. This strategy can be |
| statutory language of INA 214(g) and numerous | | | | supplemented by an independent immigration |
| explicit directives issued by USCIS. Specifically, | | | | strategy such as a labor certification or a self |
| INA 212(g) holds that the numerical limitation only | | | | sponsored EB-1 which if successful would allow |
| apply to those who are being "provided" H-1B | | | | immigration to complete in a shorter time period. |
| status, not to those already in such status and | | | | In many circumstances, physicians may pursue |
| seeking its extension. | | | | other avenues such as the O-1 or EB1/NIW |
| Therefore, it is my belief that a physician who is | | | | petitions. |
| finishing a residency or fellowship and going into | | | | Although navigating through the transfer process |
| private practice (not cap exempt) MAY apply for | | | | is a meticulous one when the H-1B cap is an issue, |
| a change in previously approved employment so | | | | physicians may gain comfort in the fact that |
| long as the physician applies for an extension of | | | | options and relief are available to their unique |
| his H-1B from within the US (not through consular | | | | challenges. |