Seguritan US Immigration Articles

Travel Guidelines for F-1 Students who Change to H-1B

An H-1B petition may be filed not earlier than April 1 of any given year or six months before the start of the following fiscal year on October 1. In some cases, the F-1 status or Optional Practical Training (OPT) period of a student who is a beneficiary of an H-1B petition expires before October 1. The cap-gap provision addresses this problem and grants an automatic extension of the F-1 status and OPT period allowing the student to remain and work in the United States.

To be eligible under the cap-gap provision, the F-1 student must be a beneficiary of a timely filed petition requesting change of status to H-1B with an employment start date of October 1. Those benefiting from this provision should be aware of the repercussions of travelling abroad during the cap-gap period.

The USCIS construes travelling outside the United States during the cap-gap extension as an abandonment of the application for change of status. Leaving the United States during this period will mean not being able to re-enter the U.S. as a student and being required to obtain an H-1B visa at a U.S. consulate abroad.

The H-1B petition filed on behalf of an F-1 student on OPT who leaves the U.S. during the cap-gap period may still be approved by the USCIS; however, the application for change of status will be considered abandoned. He will not be able to return to the U.S. immediately as he will be required to undergo normal visa application process abroad which could be subject to delays and longer wait.

An F-1 student who is on OPT with a valid Employment Authorization Document (EAD) through October 1, on the other hand, may travel outside the United States and should be able to re-enter. Documents required to be readmitted as a student include a valid passport with a valid F-1 visa stamp, Form I-20 endorsed for travel by a designated school official (DSO), a valid EAD and a letter of OPT employment. Keeping these documents always in hand while travelling will avoid delays at the port of entry.

The number of days spent overseas must be considered when travelling during OPT. The maximum number of days for unemployment during OPT is 90 days. This includes days spent travelling abroad unless it is a leave authorized by the OPT employer or is part of the OPT. The F-1 student must carry the letter from the OPT employer when travelling to avoid delays or difficulties when inspected at the border.

An F-1 student who already finished his course of study may remain in the United States during the cap-gap period. The cap-gap period automatically extends his F-1 status provided the H-1B petition was filed before his course of study ended. The cap-gap period starts from the time when his course of study ended including the 60-day grace period.

An F-1 student who is still in school through October 1, on the other hand, may travel abroad and re-enter the U.S. even with an approved H-1B petition and change of status application. He must however bring the required documents and be able to prove nonimmigrant intent. He must be in the U.S. on October 1 when his change of status to H-1B takes effect.

Obtaining a new F-1 visa abroad to re-enter the U.S. with an approved H-1B petition will be very difficult. Because a professional job in the U.S. contradicts nonimmigrant intent required for an F-1 visa, the visa application may be denied.

Some F-1 students may want to apply for their H-1B visa abroad. In this case, they should consider the processing times at their respective U.S. consulates. If they are issued their visas abroad, they may re-enter the U.S. ten days prior to the employment start date on October 1.

J-1 exchange students unlike F-1 students are not covered by the cap-gap provision. However, change of status to H-1B for J-1 exchange students will not be a problem if their authorized stay in the U.S. remains valid through October 1 or when the change of status to H-1B takes effect.


May an employer file an H-1B petition even if the cap has been met? With the 65,000 annual quota for the cap-subject H-1B petitions for fiscal year 2014 already reached, an employer should determine if the petition is subject to the numerical limit.

Based on USCIS data, approximately 124,000 H-1B petitions were received during the first week of the filing period that ended on April 5, 2013. These included petitions filed under the advanced degree exemption.

Since the number of H-1B petitions exceeded the annual quota, the USCIS conducted an H-1B lottery on April 7, 2013. The H-1B lottery is a computer-generated selection process which was last used in 2008. The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.

The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees. The USCIS however announced that it would continue to accept cap-exempt petitions.

A petition is cap exempt if the current H-1B worker has already been counted against the cap. This is the case where the petition filed on behalf of the H-1B worker is (1) to extend his stay in the U.S., or (2) change the terms of his employment, or (3) change employers, or (4) allow him to work concurrently in another H-1B position.

Petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.

To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.

In a case that our office handled a few years ago, a dental intern petitioned by a nonprofit community health center was granted H-1B status under this exemption because we were able to prove by an institutional agreement and contract of services that the clinic was affiliated with the University of Massachusetts.

The USCIS is currently revisiting its position on this exemption category. It will however grant the exemption to those who have been previously granted exemption as “related or affiliated nonprofit entities” after June 6, 2006 unless there is a “significant change or clear error in prior adjudication.”

If the USCIS finds that there is a significant change or clear error in the adjudication, it will not grant the exemption. The reorganization of the entity as a for-profit entity, expiration of the affiliation not automatically renewed and affiliation with a different institution as basis for exemption are evidence of significant changes which may lead to denial of the exemption.

A nonprofit research organization is an organization engaged in basic research and/or applied research. A government research organization is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Crackdown on H-1B Visa Fraud

Employers engaging in work visa fraud do not only face administrative penalties but also imprisonment if convicted.

An owner of a tech staffing company in New Jersey faced 6 months prison sentence and $50,000 fine for filing H-1B petitions for ineligible foreign workers and running fake payrolls. Another company owner in Iowa also faced a three year prison sentence for submitting H-1B petitions containing false statements about the beneficiaries’ jobs and work locations.

Various fraudulent schemes have been employed by employers who abuse the H-1B program. However, with the government crackdown on work visa fraud, the number of criminal convictions has also increased.

Last month, the owners of Dibon Solutions, an information technology consulting company, were indicted for multiple counts of conspiracy to commit visa fraud and wire fraud. The company operated like a staffing company which provided third-party companies the services of inexpensive foreign workers with computer expertise on an “as needed” basis.

Under this scheme, Dibon Solutions sponsored foreign workers for H-1B visa stating that the foreign workers will work for their company. In reality, Dibon did not require the services of the foreign workers. Instead, it hired these foreign workers to provide consulting services to third-party companies.

The scheme is lucrative business for both the employer and the third party companies as the employer profits by charging high hourly rates for consultancy services. Third party companies, on the other hand, save money because they do not pay workers when their services are not needed.

This is extremely unfair to the foreign workers who are generally paid only when they are placed at a third-party company. Worse, the workers do not usually get paid unless the third-party company pays their employer.

The nonproductive status of workers due to a decision of the employer is termed as “benching” by the Department of Labor. Employers are required by law to pay the foreign workers even if they are in a nonproductive status. These foreign workers, however, are not paid and are encouraged to find third party companies themselves.

The H-1B process starts with the filing of the Labor Condition Application (LCA) with the Department of Labor. The employer is required to state basic information about the proposed employment such as rate of pay, period of employment and work locations. The employer also makes several attestations. If the LCA contains false information, the LCA would be fraudulent.

Recently, the president of iFuturistics, an Indian national from North Carolina, pleaded guilty to conspiracy to violate U.S. laws by filing fraudulent immigration documents following an investigation. He had received a total of $13.2 million in payment from staffing companies. Records showed that he tried to cover his fraudulent scheme during an inspection visit by moving in furniture and setting up work stations.

Among the charges that may be filed against an employer for committing work visa fraud include conspiracy to violate United State laws, which carries a maximum prison term of five years and a $250,000 fine and presenting fraudulent immigration documents, which carries a maximum prison term of 10 years and $250,000 fine. Available remedies against the employer include restitution to victims of the fraudulent act. Also, properties, real and personal, used in the perpetration of the crime will be forfeited to the government.

USCIS Expects H-1B Cap To Be Reached April 5

The USCIS announced last March 15 that more petitions than the H-1B cap may be filed between April 1, 2013, the start of the filing season and April 5. It is therefore recommended that employers file cap subject H-1B petitions within those first five days. A petition is considered accepted, not on the date the petition is postmarked, but on the date the USCIS receives it.

Each fiscal year, an H-1B visa quota of 65,000 is allotted for foreign workers in specialty occupations. An additional 20,000 H-1B visas are made available to graduates with advanced degrees from U.S. universities. For fiscal year 2013, the H-1B cap of 65,000 was reached on June 11, 2012.

The public will be notified of the final receipt date or the date when the quota is reached. When the number of petitions received by the USCIS exceeds the quota, the USCIS will conduct an H1-B lottery which will randomly select the petitions to be accepted for processing. Petitions not selected in the lottery will be rejected and returned. Petitions filed after the final receipt date will also be rejected. It was in 2008 when the USCIS last used the lottery system.

Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request. This year however the USCIS will start premium processing of H-1B petitions subject to cap on April 15, 2013. This is to address the expected high volume of premium processing requests and the likelihood that the cap will be met in the first five days of filing.

Before the filing of an H-1B petition on Form I-129, the petitioner must file with the U.S. Department of Labor, a Labor Condition Application (LCA). The certified LCA must be filed with the Form I-129 petition.

To be classified as a specialty occupation for H-1B purposes, the occupation requires at least a bachelor’s degree or higher in the specific specialty or its equivalent. In order to be eligible for a specialty occupation, the beneficiary must have at least one of the following: (1) US bachelor or higher degree, (2) foreign degree equivalent to a US bachelor degree or higher, (3) an unrestricted license or certification to practice profession or (4) experience equivalent to completion of degree.

The H-1B petition must be accompanied by proof that the beneficiary is eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluation and license to practice the profession, if required, among others.

The USCIS allows for the submission of other evidence if the degree has not been awarded yet but requirements for the degree have been met. The final transcript as well as a letter from the Registrar confirming that all degree requirements have been met may suffice.

A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.

There is a base fee of $320 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.

New Guidance for Issuing B-1 in Lieu of H-1B Visa

The H-1B visa is a common way for businesses to hire highly skilled workers for temporary employment. However, H-1B visa numbers sometimes run out early. For the 2013 fiscal year, the 85,000 cap was reached two and a half months after the filing period opened last April.

What if a business has an urgent need for a skilled professional but H-1B visas are no longer available? A good option to explore is the little-used “B1 in lieu of H1B” visa.

This type of visa is especially appropriate for businesses based outside the U.S. that need a foreign national to perform work in the U.S. for the benefit of the foreign-based business.

Ordinarily, foreign nationals on B-1 can only engage in limited business activities such as attending meetings and negotiating contracts. They may not work, receive payment from a U.S. source or have a business in the U.S. The B-1 in lieu of H-1B visa allows these individuals to engage in a broader range of activities for a limited duration.

The “B1 in lieu of H1” policy has been criticized as a circumvention of the H-1B program. Earlier this year, Republican Senator Chuck Grassley asked the Department of State (DOS) and the Department of Homeland Security to look into possible improper use of B-1 visas by certain U.S. companies.

The DOS has just issued a cable clarifying the guidelines for the issuance of B-1 in lieu of H-1B visas. This cable supersedes its June 21, 2012 guidance cable.

The guidelines require the B-1 in lieu of H-1B applicant to overcome the presumption of nonimmigrant intent, just as in a standard B-1 visa, by showing strong ties to the home country. In contrast, the H-1B visa allows dual intent and does not require the applicant to maintain residence abroad.

The B-1 in lieu of H-1B visa permits the foreign national to work or engage in an activity that would normally require an H-1B. This means that the activity must meet the definition of a “specialty occupation” and the foreign national must be qualified, i.e. hold a bachelor’s degree or have equivalent experience. If the consular officer is not satisfied that the activities are of H-1B caliber, the applicant will be required to file an H-1B petition with the USCIS.

The foreign national while in the U.S. must be compensated by the foreign employer. The foreign-based business continues to be the employer. The workers may not receive a salary or other remuneration from a U.S. source, except for expense allowance or reimbursement of expenses.

Finally, the B-1 in lieu of H-1B visa can only be issued for activity that is less than six months in duration. It is not intended for long-term placement, unlike the H-1B which is approved initially for a three-year period with a possibility of renewal.

In many ways, then, the B-1 in lieu of H1B visa is markedly different from the H-1B visa.

The B1 in lieu of H1B visa gives employers the flexibility to fill in short-term gaps in their workforce when they arise. Unlike in an H-1B petition, the application process is faster and there is no need for a labor condition application to be certified by the Department of Labor. Also, unlike the H-1B the B1 in lieu of H1B visas are not subject to an annual cap.

Law Against Licensing of Nonimmigrant Workers Invalidated

A federal appeals court recently struck down a New York state law restricting the issuance of pharmacist licenses to U.S. citizens and lawful permanent residents (LPRs). The court ruled that such law violated the constitutional guarantee of equal protection.

The plaintiffs in Paidi v. Mills were non-immigrant aliens residing in New York, most of whom held H-1B temporary worker visas. Many of the plaintiffs had applied for a green card while some already had employment authorization documents. All of them obtained a New York pharmacist’s license. However, it was only a “limited” type of license which was granted under a waiver provision of the law.

Under the New York statute, only U.S. citizens and LPRs were eligible to obtain a pharmacist’s license. The law used to provide for a three-year waiver of the citizenship/LPR requirement, but this waiver provision expired in 2006. Licenses issued under the waiver were set to expire in 2009, which meant that the plaintiffs would no longer be able to work legally as pharmacists in the state.

This led them to file a lawsuit in district court against the officials in charge of enforcing the law. The plaintiffs claimed that the law was unconstitutional because it violated the equal protection clause of the U.S. constitution. The district court agreed with the plaintiffs and permanently enjoined the state officials from enforcing the law.

On appeal to the U.S. Court of Appeals for the Second Circuit, the state officials argued that the court should review the law using the rational basis standard. This is a low-level standard of judicial review which simply means that if there is a rational basis to support the law, the law should be upheld.

The Circuit Court rejected this argument. It said that state statutes that give disparate treatment to aliens are reviewed using the highest standard of analysis, called strict scrutiny.

For a law to pass strict scrutiny, it must further a compelling government interest. The law must also be narrowly drawn, meaning that there must be no other less restrictive means to meet that government interest.

The Court held that strict scrutiny should be applied to the New York law that discriminates against aliens who have been lawfully admitted to reside and work in the United States. The court found that the state had no compelling justification for discriminating based on alienage.

The court brushed aside the state’s argument that the non-immigrant pharmacists’ potential transience was a threat to public health. The Court said that there was no evidence that nonimmigrant pharmacists were more transient than LPR and citizen pharmacists, and that citizenship or permanent residency did not guarantee against potential transience.

The statute was also not narrowly tailored, said the Court, because there were other ways to limit the dangers of potentially transient pharmacists, such as through malpractice insurance.

Even if the law withstood the equal protection challenge, the Court said that it would not survive a challenge on preemption grounds. Federal preemption means that a state law can be invalidated if it conflicts with federal law.

Although the case was decided on equal protection grounds, the Court couldn’t help but note that New York has created an obstacle to the accomplishment and execution of federal immigration law. Congress has allowed non-LPRs and non-citizens to perform specialty occupations
as long as they were professionally qualified, but by making immigration status a professional qualification New York caused them to be ineligible to do so.

In concluding that the law was unconstitutional, the Court reiterated a Supreme Court dictum that “the assertion of an authority to deny to aliens the opportunity to earn a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance, for in ordinary cases they cannot live where they cannot work.”

Because of this ruling, New York may not legally make immigration status a qualification for a professional license. But because other courts have decided the issue of alienage and state licensing differently, this decision has created a circuit split which the Supreme Court will most likely have to resolve soon.

H-1B Petitions under Increased Scrutiny

As of June 1, 2012, the USCIS has accepted approximately 55,600 H-1B petitions subject to the regular cap of 65,000. Cap-subject petitions were being filed at an approximate rate of 1,800 per day from May 28. The master’s degree quota is also quickly filling up, with 18,700 out of 20,000 petitions already filed.

It is anticipated that H-1B visas for this fiscal year will run out before the middle of June. Employers who are planning to file cap-subject petitions should therefore complete their filings soon to ensure that their H-1B hiring needs are met. Otherwise, new H-1B workers would have to wait until October 1, 2013. Employees who already hold H-1B status are generally not counted against the cap and a petition to extend their status can be filed anytime.

A USCIS memorandum released to the public recently serves as a reminder to employers to be careful in completing the requirements for their H-1B petitions.

In the Memorandum dated October 21, 2008, adjudication officers are instructed to review more closely the H-1B filings of certain types of petitioners for possible fraud or violation of law. Petitioners with a gross annual income of less than $10 million, or which employ 25 employees or less, or whose business was established within the last 10 years, have been found to be more likely to have engaged in fraud or technical violations (also referred to as the “10/25/10” formula).

If a petitioner has two out of three attributes in 10/25/10 formula, the adjudication officer is directed to refer the petition to the fraud detection unit if there is at least one other misrepresentation in the petition, such as: fraudulent information or forged documents; if the business is found to be non-existent (based on an independent review that reveals fake or inconsistent addresses, questionable organizational chart, business zoning inconsistencies, and website information); or if the evidence of the job duties or the beneficiary’s qualifications is questionable (e.g., unsigned work experience letters, missing addresses and telephone numbers, and discrepancies in the beneficiary’s skills, education or age).

Regardless of the presence of any of these factors, if a petitioner has been referred to investigation by the Immigration and Customs Enforcement (ICE), or if the petitioner or alien is the subject of an ongoing ICE investigation, the guidance states that the petition must be referred to the fraud detection or background check unit.

It also identifies several ways by which petitioners who meet the 10/25/10 formula commit technical violations. Among the red flags listed are the following: physical job location is not listed on the I-129 form or on the labor condition application; mismatch between the salary and the prevailing wage; and misrepresentations on the beneficiary’s immigration status.

The USCIS also pays attention to any inconsistency between the offered job and the normal activities of the business, as well as between the facility and the type of work to be performed (e.g. petitioner claims to have 100 employees but the facility is in a residential zone).

In these cases of possible technical violations, the adjudication officer cannot approve the petition until the potential violation of law is resolved through a request for evidence, intent to deny or intent to revoke.

The memorandum sheds light on the agency’s review process and probably explains the increased H-1B denials despite the absence of any change in the law. It was made public as a result of a lawsuit under the Freedom of Information Act.

Demand for H-1B Visa on the Rise

As of April 9, 2012, the USCIS received a total of 25,600 cap-subject H-1B petitions for employment beginning October 1, 2012. This is double the petitions it received for the entire month of April last year.

Some 17,400 of these filed petitions are subject to the regular cap and 8,200 are advanced degree petitions. Under the law, a maximum of 65,000 H-1B petitions are allowed to be filed each fiscal year. There is a separate 20,000 cap for petitions for individuals with a master’s degree or higher from a U.S. university.

This fast pace of H-1B filing is viewed by many as a sign of an improving economy. The H-1B visa is used to employ workers in specialty occupations, such as teachers, therapists, accountants, engineers and computer programmers.

While the demand for H-1B numbers is unpredictable, it can be said that the demand fluctuates with the economy. H-1B demand dropped in the last few years as the economy slowed down.

To illustrate, for fiscal year 2008 the 65,000 cap was reached on the first day of filing or on April 2, 2007. The next fiscal year, it took one week or until April 7, 2008 for the cap to be reached. For fiscal years 2010, 2011 and 2012, the cap remained open until December 21, 2009, January 26, 2011, and November 22, 2011, respectively.

In this year’s first week of filing (April 2 to April 6), the USCIS received more than 22,000 petitions. Last fiscal year, the first week of filing saw a total of 10,400 petitions.

If employers continue filing cap-subject H-1B petitions at this rate, there is no doubt that the quota will be filled very soon, perhaps before the end of summer.

In case the USCIS receives applications that exceed the numerical cap, it will select at random the number of petitions required to reach the cap from the pool of petitions received on the final receipt date. Cap-subject petitions that were received but not selected in this “H-1B lottery” would be rejected, along with those received after the final receipt date.

Not all H-1B petitions are subject to the numerical limits. Among those exempt are petitions for H-1B workers employed by institutions of higher education or a related or affiliated nonprofit organization and nonprofit research organizations.

Also excluded from the cap are individuals who have been counted previously against the cap within the last 6 years. This includes petitions extending the H-1B employment of current H-1B workers, changing the terms of employment for current H-1B workers, transferring employment from one cap-subject H-1B employer to another H-1B employer, and allowing current H-1B workers to work concurrently in a second H-1B petition.

Preparatory to the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor before filing the petition. It must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification.

Students on optional practical training (OPT) are eligible for continued work authorization, even after their OPT ends and before their H-1B employment begins, if they benefit from the so-called “cap gap rule”. Qualified students who are beneficiaries of timely-filed H-1B petitions requesting change of status to H-1B automatically get an extension of their “duration of status” and OPT employment authorization until October 1st.

Given the high demand for the H-1B cap, employers who currently have or are planning to hire employees who need H-1B sponsorship must initiate the H-1B petition process as soon as possible.

Visa Requirements for Business Travelers

In today’s global economy, people from all over the world visit the United States for business reasons. However, although the United States has a policy of allowing the free movement of people into the U.S. for cultural, social and economic reasons, at the same time it has to protect its labor force from those who enter the country to perform labor or seek employment.

Because of these two interests, U.S. consular officials carefully screen visa applications. With the exception of those in visa categories that allow “dual intent” such as H-1B and L-1 visas, nonimmigrant visa applicants are automatically seen as intending to settle permanently in the U.S. To be eligible for a B-1 visa, even business visitors must overcome the presumption of immigrant intent.

There are three basic requirements for a B-1 visa. First, the applicant must give proof of an unabandoned foreign residence. This refers to the principal actual dwelling place of the applicant. It is the principal place of abode to which he/she will return at the end of the temporary visit to the U.S.

Second, the entry must be for a temporary period only, meaning, that the stay is for a limited time and not indefinite. To prove this, the applicant must give evidence of specific plans for the visit, adequate financial resources, and sufficient business and family ties to his/her home country which would be a strong inducement to leave the U.S. at the end of the visit.

Third, the purpose of the visit must be to engage in permitted business activities. The applicant must be visiting for business and not for the purpose of local employment or labor for hire.

Sometimes, it is hard to distinguish between a permissible business activity and impermissible labor or employment. In such a case, the consular official must look at whether the principal place of business and the actual place where profits accrue are in the foreign country and not in the U.S.

The consular official may also use the old three-prong test which asks, first, whether the individual would be compensated from a U.S. source. The B-1 nonimmigrant may receive an expense allowance or reimbursement from a U.S. source, but he/she may not receive a salary or remuneration from U.S. sources in connection with activities in the U.S.

The second prong pertains to the nature of the services performed. Attendance at business meetings is allowed, but services, even if uncompensated, for which a U.S. worker would have to be hired, or those services inherently part of the labor market are not and could disqualify the applicant from the visa.

The third prong requires the officer to determine who benefits the most from the visitor’s services in the U.S. If it’s a U.S. entity that will benefit the most, chances are the visitor will be denied a B-1 visa. On the other hand, if the foreign national or foreign employer primarily benefits from the services, the visitor may be eligible for a B-1 visa.

Examples of business activities that are allowed under a B-1 visa are the following: engaging in commercial transactions; negotiating contracts; litigating; participating in a convention, conference or seminar; and undertaking independent research.

Immigration Bill to Alleviate Doctor Shortage

Reports show that there is a serious shortage of doctors in America today. While it may not be obvious in big cities, the lack of physicians has become strongly felt in poor and rural areas. By year 2020, the doctor shortage is expected to reach 200,000 because of the aging baby boom generation.

A bipartisan bill was recently introduced in the Senate to make it easier for foreign doctors to obtain temporary visas and permanent residence in the U.S. and thereby address the shortage.

The bill, also known as the “Conrad State 30 Improvement Act” (S.1979), seeks to make permanent a program allowing states to recommend J-1 waivers for physicians who work in medically underserved communities. Currently, the program needs to be renewed every 2 or 3 years. The number of doctors that can be sponsored by each state annually would also be increased from the current 30.

It would also allow doctors on H-1B status to restart the 6-year maximum period if they agree to work in underserved areas. The doctors would also find it easier to change employers.

Additionally, doctors who work in underserved areas would be able to immigrate under the EB-1 category, instead of the EB-2 category. This would greatly benefit physicians from China and India who would otherwise face lengthy visa backlogs under EB-2.

The doctor deficit is in part due to the economic recession but also in some part a result of the immigration restrictions on foreign medical graduates.

The immigration of foreign doctors is a complex matter governed by different sets of rules. Foreign doctors usually come to the U.S. either on an H-1B visa, which allows temporary employment, or J-1 visa, which permits them to undergo graduate medical education or training.

Most of the time, hospitals and medical schools offer only the J-1 option because of the lower level of responsibility required of them. Because H-1B visas are subject to annual limits, when the cap is reached the J-1 is sometimes the only option.

Upon the expiration of their J-1 visa, doctors must return to their home country for two years before they can apply for permanent residence. They may apply for a J-1 visa waiver to be exempt from this home residence requirement. One of the ways to get a waiver is through the state or the Conrad State 30 program, which is named after Sen. Kent Conrad (D-North Dakota) who sponsored the bill back in 1994 and which is the subject of the S.1979.

Many doctors, however, are unwilling to go through the waiver process and instead choose to go back to their home countries or elsewhere to work. Even doctors on H-1B status who lack options for permanent residence sometimes just give up upon reaching the 6-year maximum H-1B period.

Although the specific requirements vary by state, the Conrad State 30 program allowed states to sponsor a certain number of foreign-born, U.S.-trained physicians per year for the J waiver, as long as they agreed to practice in underserved communities for at least 3 years. It was seen as a win-win situation: the doctor was able to remain in the U.S. and the community had a doctor.

The program has allowed 9,000 doctors to work in rural and underserved communities. However, the number of foreign doctors participating in the program has gone down over the years, further limiting the access to healthcare of the people who perhaps need it the most.

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