H-1B Cap Exemptions for Physicians: J-1 Home Residency

Last year in Fiscal Year (FY) 2018, the USCIS received enough petition towards H-1B visa lottery to satisfy the statutory cap of 65,000 as well as the advanced-degree exemption of 20,000 in less than five days. For petitioning employers that did not submit petitions before April 7th, 2017 or those who were unable to make it into the lottery, employers and beneficiaries must wait another year until they can petition for H-1B lottery in FY 2019 (starting April 2, 2018). However, for certain professionals, like physicians, USCIS offers exemptions to annual cap constraints.

General H-1B Cap Exemptions

If the petitioning employer is an institution of higher education, nonprofit entity related to or affiliated with institution of higher education, nonprofit research organization or a governmental research organization or if the beneficiary will be employed at a qualifying cap exempt institution, organization or entity, then the beneficiary is exempt from the H-1B cap. Although most hospitals are not considered to be education-based organizations, teaching hospitals qualify for the exemption. Therefore, the physician’s employer must qualify for the cap exemption either by itself or based on affiliation with a qualifying institution.

IGA Cap Exemption for J-1 Physicians

For international medical graduates (IMG), the J-1 exchange visitor program assists many in obtaining graduate medical training in the United States. IMGs must pass the U.S. Medical Licensing Examination (USMLE), complete a medical residency, and get licensed in a state in order to practice medicine. However, IMGs who obtain a J-1 exchange visitor visa to do their residency and/or fellowships are subject to home-residence requirement (HRR) whereby they must return to their country of origin for at least two years after completion of the training. The rule serves to prevent “brain drain,” or the loss of intellectual talent to the U.S. Therefore, J-1 beneficiaries cannot be beneficiaries of an H-1B petition during the two-year home residence required stay. Similarly, they are also not eligible for permanent residency i.e., a green card. However, some J-1 physicians may be able to apply for waivers to overcome the requirement through an interested government agency waiver, or IGA which is done by generally utilizing a IGA waiver known as Conrad 30 waiver program or a Federal agency. Such waivers allow J-1 physicians to practice in a geographic region in the U.S. that is medically underserved. After working in the underserved area for a period of three years and subsequently obtaining a waiver, the physician receives permanent exemption from the H-1B cap. Additional method of obtaining a J-1 waiver is by documenting that the J-1 beneficiary would be persecuted if the individual had to return to his home country or by documenting that his/her U.S. citizen or lawful permanent resident spouse and/or children would suffer “exceptional hardship” if the physician had to return home.