Cap Exempt H-1B for Physicians and Researchers

The H-1B category for temporary workers in a specialty occupation is often the only nonimmigrant visa category available for a U.S. employer seeking to employ a foreign national. The employer must be seeking to fill a “specialty occupation” with a qualified foreign national. A qualified individual is one who possesses the minimum credentials necessary to practice the specialty occupation, i.e., the appropriate academic degree or the equivalent of a degree. Where U.S. state licensure is required in order to practice the occupation without restriction, the USCIS requires the individual to possess the license before H-1B status is granted. There is a statutory cap that limits approval of new H-1B petitions in a fiscal year and the cap is currently set at 65,000.

Foreign nationals who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

The H-1B petition may be approved for a maximum initial period of three (3) years and may be extended for an additional three (3) years. A foreign national’s total period of continuous stay in the U.S. may only exceed six (6) years under certain special circumstances. Petition approval authorizes the foreign national’s employment in the position and location stated on the petition. There is a $325 fee to file an H-1B petition with the USCIS. There is also a Fraud Prevention and Detection Fee of $500 to be paid by cap-exempt petitioners seeking a beneficiary’s initial H-1B nonimmigrant visa classification or by cap-exempt petitioners seeking to change a beneficiary’s authorized employer. Cap-subject employers must also pay an additional ACWIA fee of $1500 ($750 for employers with no more than twenty-five (25) employees) for an initial H-1B petition as well as the first extension

Licensure and Educational Requirements

An H-1B petition filed on behalf of a foreign national physician must include evidence that the foreign national physician has a full and unrestricted license to practice medicine in a foreign state or has graduated from a medical school, whether in the United States or abroad. Physicians who are to perform direct patient care, need to have any license or other authorization required by the state of intended employment. The H-1B petition must also include evidence the physician has passed the U.S. Medical Licensing Exam or has graduated from a U.S. medical school. The physician must be competent in oral and written English as demonstrated by the passage of the proficiency test required by the Educational Commission on Foreign Medical Graduates. If the physician has graduated from a medical school accredited by a Secretary of Education approved body, English language competency is not required.