Published on:

H1B Transfer Based on Extenuating Circumstances

An H-1B transfer may, under certain circumstances that are considered extenuating, be approved for a physician that has been granted a J-1 waiver to practice medicine in an underserved area. An approval of such a transfer would allow the physician to complete the remainder of the three year waiver obligation with the new employer. The physician would not be required to file a new waiver application nor would the physician require the permission of the state department of health in which the current waiver is being served.

An H-1B transfer based on extenuating circumstances allows a physician to transfer to a work location in the same or another state, provided the new work location is located in a federally designated underserved area and complete the remaining time on the waiver obligation. Again, permission or approval of the current or new state department of health is not required, although in some cases it can add weight to the application.

Published on:

HARDSHIP AND PERSECUTION WAIVERS

One method for a J-1 Physician to obtain a waiver of the foreign residency requirement is to obtain a hardship waiver.  Hardship waivers are based on a showing of exceptional hardship to a qualifying relative (U.S. Citizen/Permanent Resident Spouse or Child) should the J-1 Physician be required to return home for two years. The hardship is not on the J-1 applicant, but on the qualifying relative.

Hardship factors may include:

  1. economic hardships
  2. political hardships
  3. religious hardships
  4. hardships caused by dangerous environment in the home country
  5. medical hardships
  6. social hardships
  7. psychological hardships
  8. and other hardships

Again, the USCIS must find that the hardship is exceptional not the normal hardship that satisfaction of the year requirement would impose on anyone.  The strongest cases often involve situations where the U.S. citizen or legal permanent resident has a medical condition, or an English language disability or psychological vulnerability that would be exacerbated in the J-1 visa holder’s country.  Other strong cases exist where the Department of State lists the home country as dangerous for U.S. citizens who would travel there.

Continue reading →

Published on:

Finally!  The DHS has announced that starting May 26 of this year certain H-4 dependent spouses will be eligible for EAD’s. This is a tremendous benefit and will undoubtedly provide great flexibility and opportunities for many qualified individuals who up to now were forced to wait for their H-1B spouse to file for adjustment of status to obtain work authorization.

In order for the H-4 spouse to be eligible for the EAD the H-1B beneficiary will need to either have an approved I-140 (Regardless of the category) or have an H-1B extended beyond 6 years based on a timely filed I-140 (AC21 106(a) and (b)).

Official announcement from DHS.

Published on:

The President’s November 2014 announcement means many things for millions of immigrants, legal and illegal. For many illegals, the President’s announcement means millions will be able to obtain work authorization for at least three years and not fear being deported by coming out of the shadows- for a few years at least. We will focus this posting on what the President’s announcement means for lawful immigrants pursuing their career in the United States.

Following the President’s November 2014 announcement the Secretary of the Department of Homeland Security issued a memo to United States and Immigration Services (USCIS) directing the agency to issue new regulations that would provide many benefits to foreign born professionals in the United States.

140,000 employment-based permanent visas are allotted each year, many left unused for various reasons. Over the past 20 years the accumulation of unused visas has resulted in over 300,000 unused visas. The memo urges USCIS to ensure the allotted number of immigrant visas, and the unused ones from previous years are actually used which should alleviate some of the backlog in the EB2 and EB3 categories,  who have been living in the US for  many years, some over a decade and repeatedly renewing their temporary employment visas (H1Bs, O1s etc.). The President cannot increase the number of visas however because that is a power reserved for congress and congress alone, so the influx of visa slots and associated benefits may be short lived. The administration seems to also understand the burden beneficiaries of immigrant petitions who are forced to wait years before being able to file for permanent residency face, and has also directed USCIS to increase the options and flexibility these professionals have in pursuing their careers in the US, including the ability to switch employers without detriment.

Continue reading →

Published on:

You have completed your training, have received numerous offers of employment and finally are ready to sign the contract that you worked so hard to receive. You still have not used up the full 6 years of H1B and are told by your employer he will sponsor your labor certification so you could eventually receive your Green Card. Then you find out that the employment is possibly subject to the H1B cap. Until now you never had to worry as your residency and fellowship was exempt from the cap. Many private practices are subject to the cap and it is important to consider the negative aspects of relying on cap subject employment and consider if the employer may qualify for other options that avoid the following consequences:

The Negative aspects of relying on a cap subject H1B:

  • Leave it to chance– There are only 85,000 spots each fiscal year (FY) with 20,000 of those spots reserved for those with US master degrees and the other 65,000 for all other applicants.  In FY 2014, there were over 125,000 applicants in the first week, so USCIS implemented a lottery to choose which H1B they would adjudicate. This means that there was about only a 50% chance an applicant’s H1B would even be considered for review. If the applicant isn’t selected, USCIS will simply return the application and filing fees and the applicant will have to wait to try again the following year.
  • Inability to remain in the country or continue working at the expiration of your current H1B– The FY starts on October 1st so any cap subject H1B may only begin working on or after that date. If the person is not able to remain in the country on another visa (such as an H4 based on spouse’s status), the person would have to leave the U.S. and the earliest the applicant would be allowed back into the U.S. is September 20th  as one is allowed to enter up to 10 days before the H1B start date.

Continue reading →

Published on:

If the H1B cap exempt flow chart does not address your particular situation there are still several options that would allow you to commence work upon completion of your training program and avoiding the H1B cap and all of its consequences.

  • Concurrent H1B– An alien is allowed to have two valid H1Bs and H1B employers. If the start date of the new employment overlaps with the validity date of the applicant’s current H1B, the second H1B is considered a concurrent H1B. A concurrent H1B is always exempt from the cap. It is recommended that on appearance the terms of each H1B can be satisfied.
  • O-1– an O-1 is an excellent option for not only qualified candidates that are seeking an alternative to a cap subject H1B, but for those who need an option of working for an employer after exhausting their 6 years of H1B time. O-1s may be sponsored by any employer and can be for a full time or part time position. Another benefit is there is no cap issue and an O-1 beneficiary may commence work at any time for the employer without waiting for the start of a new fiscal year.  Applicants may be surprised how their routine work during the course of residencies and fellowships or other training programs allow them to satisfy the requisite O-1 criteria.
  • J1 waiver physicians are always exempt– If an applicant was at one point a J1 physician, subject to the two-year home residency requirement and the applicant obtained a waiver of the two-year home residency requirement through a Conrad 30 or other interested government agency waiver, then that physician’s employment will always be exempt from the cap, not only for the 3 years of service in an underserved area, but all subsequent employment thereafter, even for areas that are not considered underserved .

Continue reading →

Contact Information