Career Advice by Randy

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Physicians are subject to a number of unique provisions relating to their eligibility for visa issuance. Also because of the nature of U.S. licensing for medical doctors, physicians often obtain either J-1 visas or H-1B visas for substantial periods of time before they can actually practice medicine in the U.S. This in itself may impose special burdens on the physicians’ desire to be in the U.S. beyond training the physicians’ needs. In a Memo made available 12/20/06 the USCIS reversed prior position that H-4 counts toward the H-1 six year limit. It no longer does!

Fortunately, there are a number of strategies that may be implemented to deal with the problem by either putting a “freeze” on the accumulation of additional H-1B status while obtaining an alternative basis of employment, or by providing the legal foundation to extend H-1s for seven years and beyond.

A “freeze” can be placed on the additional accumulation of H-1B status toward the six year by the filing of an adjustment of status application with applications for work authorization and travel permission filed simultaneously. Once the work authorization and travel permission application are approved the physician can use the travel permission to be admitted to the United States as a “parolee” using from that point on their work authorization as a basis of employment and no longer accumulating additional H-1B status. The basis of the adjustment of status may be a labor certification or a petition filed under the “extraordinary ability” or “national interest” categories.

A strategy to extend H-1B status beyond the sixth year involves the timely filing of either a labor certification or I-140. If such an application is pending for one year, an application to extend status beyond the sixth year may be approved an unlimited number of times in one year increments. A physician may be petitioned through labor certification by a future prospective employer that may want employ the physician after training is completed. Even if there is a change of plan, the labor certification may provide unlimited extension beyond six years as long as the prospective employer does not affirmatively withdraw it. The H-1B petitioner need not be the same as the labor certification or I-140 petitioner. Multiples submissions can, of course, be staggered. Thus an EB-1 may be filed before the beginning of the sixth year guaranteeing a seventh year. If it has not been approved an EB-2/NIW can be filed before the beginning of the seventh year guaranteeing an eighth year extension, and so on. Additionally, if visa retrogression bars the filing of adjustment of status, an approved I-140 provides the basis for a three year H-1B extension beyond the six year limit.

Finally, if a physician is already at the end of his or her six years of H status, there may be other non-immigrant alternatives that would permit continued employment including the O-1, TN, E-1, and E-2 visas. If all else fails, the physician must exit the country for a year, at which time the physician may be eligible for a fresh additional six years of H-1B status.

Stephen Jeffries & Associates
1560 Broadway, Suite 914
New York, NY 10036
Phone: 212-764-4222
Fax: 212-764-4229
Email: dcorigliano@jeffries-law.com

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