H-1B for Doctors and Medical Professionals

H-1B for Doctors and Medical Professionals

H-1b visas for doctors make lots of sense.  The United States fails to train enough doctors to care for its unhealthy and aging population.  Seriously, the average american male is 200 pounds and shade under five feet, ten inches (5’10”).  This means that the average American has a Body Mass Index (BMI) of 29, meaning they are overweight and boarding on the obese rating of 30.  Americans have greater health problems because of how bad of shape they are in, which means that H-1B visas for doctors can greatly help a problem the US faces.

H-1b visas for doctors can help fill the shortfall

In 2017, the Association of American Medical Colleges predicted that the shortfall of doctors will be 88,000 by 2025, and 104,900 by 2030. Americans may stop eating garbage and all begin exercising 6 days a week, but that is not likely.  Moreover, Americans are growing older.  The percentage of Americans over 65 will grow by fifty-five percent (55%) by 2030.  America has a vested interest in granting H-1B  visas for doctors.  Also, most of these H-1B visas do not face the cap that businesses face because most hospitals are exempt non-profits.  In theory, H-1B visas could fill the gap, in conjunction with J-1 visas.

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Guidance for Petitions in Which the Doctor or Medical Professional Is in Possession of a License

If the Hospital provides documentary evidence that the doctor has a valid license to practice a health care occupation in the state in which the doctor will be employed, the government should not look beyond the license.

The doctor meets the qualifications to perform services in a specialty occupation as outlined in the federal regulations from the USCIS. 8 CFR 214.2(h)(4)(iii)(C)(3).

If the doctor is in possession of an unrestricted license, and the petition is otherwise in order, the USCIS should approve the petition for the full H-1B period requested.

If the doctor is in possession of a restricted license (e.g., license approved except for mandatory supervised practice), and the petition is otherwise approved, the USCIS should approve the petition for a period of one year, or the duration of the restricted license, whichever is longer.

Guidance for Petitions in Which the Doctor Is Not in Possession of a License

In order to perform in a health care occupation, the doctor must obtain a license from the state in which he/she will be working, meaning the doctor must meet the license provisions for H classifications.

If the hospital states that the doctor cannot obtain a license to practice the health care occupation in the state in which the doctor will be employed due to the fact that the state’s statutes mandate possession of a social security card and/or a valid immigration document as evidence of employment authorization, the adjudicator must ascertain the requirements for the license (including educational degree requirements) in the health care occupation in that state to determine whether the doctor is qualified to perform.

All aliens who wish to enter the United States to practice in a health care occupation other than as a physician must be found to be admissible under Section 212(a)(5)(C) of the the Immigration and Nationality Act (the “Act”).

If the hospital fails to provide evidence that the doctor received a certificate from a recognized credentialing organization as outlined in 212(a)(5)(C) of the Act, the doctor may still qualify for classification as an H-1B non-immigrant.

If the doctor is seeking to extend status or change status, and the hospital fails to provide the requisite credentialing evidence, the request for extension or change of status should be denied as the doctor is inadmissible under Section 212(a)(5)(C) of the Act.

If after conducting research the adjudicator is unable to determine the state’s requirements for licensing, the USCIS may send the hospital a request for evidence (RFE) asking the hospital to provide documentary evidence of the state’s requirements.

Furthermore, the hospital will need to provide evidence that the doctor:

Has filed an application for a license in accordance with state or local rules and procedures; and

Cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the United States in the form of a letter from the State Board.

Assuming a petition is approvable under the above standards, the validity period should be one year.

The approval of any such H-1B petition shall not constitute approval by USCIS for the alien doctor to engage in any activity requiring possession of such State or local license.

It is merely a means to facilitate the state or local licensing authority’s issuance of such a license to the alien, provided all other requirements are satisfied.

If the hospital later requests an extension of stay on behalf of the doctor , the hospital must demonstrate that the doctor has been granted a valid unrestricted license to practice the health care occupation in the state in which he/she will be working.

If the doctor does not have the valid unrestricted license at the time the extension of stay petition is filed, the petition will be denied.

Disney H-1B Lawsuit for Discrimination Against Americans

Disney H-1B Lawsuit for Discrimination Against Americans

As Disney says, it’s a small, small world.  It turns out that after the entertainment and media giant replaced some of its IT staff with contract workers from India.  Tata Consulting, Wipro, and a handful of other IT consulting companies comprise about half of all H-1B applications entered into the lottery each year.  They are the companies causing headlines about Americans losing their jobs and the uproar over immigration reform (more like restriction).

Disney is being sued for discriminating against against Americans “based solely on their national origin and race, and replacing them with Indian nationals.”

In mid-December, 30 former IT employees let go from Disney World in early 2015 filed a complaint with the U.S. Equal Employment Opportunity Commission, and now in the U.S. District Court in Orlando.  The complaint alleges that Disney discriminated against them based on their nation of origin and race.

Disney often tells fairy tales, but now it’s in one

The tale against H-1B Visa holders has been unfolding for some time.  In 2014, former Harley-Davidson IT employees filed a federal class action lawsuit alleging the  motorcycle company discriminated against American workers by replacing them with H-1B employees from South Asia, according to USA Today. That suit is still pending.

These lawsuits may be nothing more than a fairy tale because so far no H-1B-related suits based on nation of origin or race have been successful. Typically, lawsuits regarding discrimination based solely on national origin or race are filed by minorities.  There is no reason why the tables cannot be turned and have non-minority workers facing the same discrimination against them.

The trend is not going away, more H-1B visa holders will face more hostility as technology continues to automate jobs currently held by humans.  The practices of certain IT staffing firms may be curtailed, but businesses often buy from cheaper vendors.  If Disney believed that it would receive better IT services for a cheaper price, they have a duty to their shareholders to maximize value.

Help maximize your value by setting up your Work Visas Account now.  We use the data to complete your H-1B application and assist in managing its status throughout the course of your visa.

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Lawsuit to End the H-1B Lottery?

Lawsuit to End the H-1B Lottery?

A class action lawsuit filed is attacking the lottery method for selecting the H-1B visas awarded each year to foreign workers in specialty occupations.   Tenrec, Inc., et al v. USCIS, U.S. Dist. Oregon, Case No. 3:16-cv-995.  Highly skilled employees in computer science, engineering, medicine, education, law, or other sophisticated and in demand fields qualify for H-1B visas.  However, demand outstrips supply by a factor of 3 applications for every one available H-1B visa.  The class action lawsuit alleges that the H-1B lottery violates the text of the statute that requires the visas to be issued“in the order in which petitions are filed.” 8 USC 1184(g)(3).  

In 2005 the United States Citizenship and Immigrations Services (USCIS) adopted regulatory changes to the procedures for awarding H-1B visas from a first-come-first-served basis to a computer generated random allocation of all pending H-1B visa applications received by a certain date.  The USCIS includes in its lottery all of the H-1B petitions received within the first five business days after the application window opens on April 1st.  The procedural changes arose after USCIS became inundated with tens of thousands of applications in a single day, and heard numerous complaints from applicants who missed out on being the first to file.

Congress has not increased the number of H-1B visas since 2004, when it fixed its number at only 85,000.  The USCIS has received far more H-1B applications than can be granted for years.  The number of applications only seems to grow.  In 2013 USCIS received 124,000 H-1B applications, then 172,000 in 2014, followed by another 233,000 in 2015, and 236,000 in 2016.  Before the lottery, employers spent significant amounts money and effort to ensure that their application arrived at the USCIS office before the 85,001st application.  The H-1B selection process resulted in little more than a race to the USCIS office.  As a consequence the USCIS instituted the lottery and provided the five-day application window to accommodate all applications and provide them each with the same likelihood of success.

On September 22, 2016, the District Court of Oregon denied USCIS’s motion to dismiss the lawsuit.  The opinion denying the motion to dismiss relied heavily on the injury the plaintiffs suffered as a result of the H-1B visas not being awarded in the order that Congress specified.  The statute clearly provides that the visas are to be awarded on a first-come-first-served basis.  The USCIS exercised its authority to carry out the statute by treating every H-1B application received the exact same through its lottery regulations.

If the lawsuit strikes down the H-1B lottery, perhaps employers would build new offices right next to the USCIS building to hand deliver its H-1B applications on April 1st, the first day in which applications for the next fiscal year can be made.  If the H-1B lottery is overturned, some poor team of USCIS employees would have to take a mountain of applications and begin numbering them in the order in which they were received until they count the first 85,000.  At least that is the reading of the statute that Congress passed. Congress could adopt the lottery method, but it requires action.  The only action Congress has recently taken on the H-1B visa is to make them even more difficult to obtain.