H-1B Temporary Worker

The H-1B visa is intended for nonimmigrants with the requisite qualifications who seek to perform services in a specialty occupation in the United States.

Basic Requirements:

• A “specialty occupation” is one that requires:
  • Theoretical and practical application of a body of highly specialized knowledge, and
  • Attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
• There are 65,000 H-1B visas available every fiscal year, starting on October 1. An additional 20,000 H-1B visas exist for nonimmigrants with graduate (master’s or higher) degrees from a U.S. institution of higher education. H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
• The nonimmigrant must hold a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university; hold a foreign degree determined to be equivalent U.S. baccalaureate or higher degree; hold a license or certification which authorizes practice of and engagement in that specialty in the state of intended employment; or have education, training, and/or experience equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation, and recognition of expertise in the specialty through progressively responsible positions.
• For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the nonimmigrant lacks. For equivalence to an advanced (or master’s) degree, the nonimmigrant must have a baccalaureate degree followed by at least five years of experience in the specialty.
• An employer must complete and file a Labor Condition Application (“LCA”) with the U.S. Department of Labor (“DOL”) prior to the filing of the H-1B petition. The employer attests on the LCA that it will pay the alien a wage equal to the higher of either
  • (i) the “prevailing” wage for the specialty occupation in the local labor market or
  • (ii) the “actual” wage paid by the employer to other workers with similar responsibilities and qualifications in the occupation. (The employer must retain documentation supporting determination of both the prevailing wage and the actual wage.)
• The employer also attests that the H-1B’s employment will not adversely affect the working conditions of U.S. workers similarly employed, that there is no strike, lockout or other work stoppage in the occupation in which the H-1B worker will be employed and that notice of the filing of the application has been provided to the company’s employees and the foreign national.
• Additional requirements relating to recruitment and displacement of U.S. workers are required from employers whose workforce is composed of a significant percentage of foreign nationals (“dependent employers”). The DOL may investigate to determine whether all LCA requirements have been met and penalties for a willful failure to comply can be severe.

Period of Stay:

• Initial period of stay can be up to three years; maximum period of stay is typically six years for H-1Bs, with a few exceptions.

Dependent Family Members:

• Dependents including legal spouses and children under 21 years of age are eligible for H-4 status. Certain H-4 spouses are permitted work authorization.

Procedure:

• Requires submission and approval of the LCA by the Department of Labor followed by an H-1B Visa Petition with supporting evidence to U.S. Citizenship & Immigration Services (USCIS). Following approval, the employee must apply for and obtain an H-1B visa at a U.S. consulate abroad before being admitted to the U.S.
• Canadian citizens are considered visa-exempt and may be admitted with an H-1B approval notice and valid passport.

Processing Times:

• USCIS processing times are subject to change but average 6 months unless premium processing service is used, in which case USCIS will review the petition with 15 calendar days.
• Visa appointment availability is subject to change but appointments are generally available within 1-2 weeks, with visas being issued within 7-10 days following, assuming no government administrative processing delays.

Maintaining H-1B Visa Status:

• The visa is employer-specific, meaning that an employee cannot change employers without government authorization.
• The visa is job- and location-specific, meaning that an employee cannot change positions or locations without government authorization if a material change in job duties or worksite will occur.

Conrad 30

In General

If a foreign national physician is subject to the two-year home country physical presence requirement due to having entered the United States on a J-1 visa for the purpose of obtaining graduate medical education or training, an Interested Government Agency (IGA) waiver known as a Conrad 30 program may be the only option to stay in the U.S. and seek H-1B temporary worker status and/or permanent residence.

In assessing whether the program is a viable option, the proposed employer must qualify as part of a Medically Underserved Area and Medically Underserved Population (MUA/MUP) or Health Professional Shortage Area (HPSA).

MUA/MUPs have shortages of primary medical care, dental or mental health providers and may be geographic (by county or service area) or demographic (e.g., low income, Medicaid-eligible, culturally and/or linguistically impeded access to primary medical care services). Each is assigned an Index of Medical Underservice (IMU) score, which is used to determine the eligibility of an area or population for MUA/MUP status. The Score is 0 to 100, with 0 being completely underserved, and 100 being completely served. The database for determining MUAs and MUPs is available at http://muafind.hrsa.gov/.

Health Professional Shortage Areas (HPSAs) have shortages of primary medical care, dental or mental health providers and may be geographic, demographic, or institutional (comprehensive health center, federally qualified health center or other public facility). They are scored from 2 to 26, with 2 being the highest need. The database for determining HPSAs is available at:

http://hpsafind.hrsa.gov/HPSASearch.aspx.

Census Tract information to determine where an employer is located is available at: http://www.ffiec.gov/Geocode/default.aspx.

HPSA/MUAs can lose their designation if they become saturated markets, so it is wise to check with the Shortage Designation Branch before proceeding further.

Another consideration in determining whether the Conrad 30 program is a possibility is to find out whether the foreign physician received funding from his/her home government to pursue medical training in the U.S. If s/he did, a no-objection statement from his/her home country will be required. That statement must conform with Department of State regulations and specify that it is being furnished pursuant to Public Law 103-416.

South Carolina

In the State of South Carolina, all waiver applications must have the prior approval of the South Carolina Department of Health and Environmental Control, Office of Primary Care. South Carolina will sponsor up to thirty (30) waivers for foreign physicians per federal fiscal year. All physician specialties are eligible for consideration. All employers must be pre-approved by the Primary Care Office (PCO) and assigned a J-1 waiver slot before a waiver application will be accepted for processing.

Applicant employers may request a slot assignment at any time. Applicant employer eligibility requirements are as follows:

• Employers can be, but are not limited to, publicly funded health care facilities or private entities.
• The health care facility must be located in a federally designated shortage area or must serve an underserved population.
• A facility must currently accept Medicare and Medicaid assignment and have an approved arrangement for treating indigent, uninsured patients.
• A facility must have been providing care for a minimum of 12 months in the state of South Carolina prior to submitting its request.

Upon receipt of a slot assignment, the facility should assemble the J-1 Waiver application according to instructions available at:

https://www.scdhec.gov/sites/default/files/docs/Health/docs/J-1%20Waiver%20Application%20Components.pdf.

If additional information is required by the State of South Carolina, that information will be specified by the Office of Primary Care and communicated at the time of the slot assignment. The following is required in assembling the J-1 Waiver application:

• Physicians need to submit the Department of State data sheet and processing fee to the U.S. Department of State (DOS) in order to establish a case number prior to submission of applications to the South Carolina Department of Health and Environmental Control (DHEC).
• DHEC will complete an initial review of the application within 10 working days of receipt.
• All incomplete applications will be returned to sender.
• Upon approval, DHEC will forward the waiver application to the U.S. Department of State (DOS). The DOS must approve the application before it is sent to U.S. Citizenship and Immigration Services for final approval.
• DHEC will send a copy of its support letter to the physician when the application is forwarded to the DOS.
• Application status can be tracked at the DOS using this link: http://j1visawaiverstatus.state.gov/

Georgia

In the State of Georgia, waiver support is based on, but not limited to: 1) compliance with State and Federal laws and regulations; 2) need for service; 3) community support for the placement; 4) employer’s commitment to treating patients regardless of their ability to pay; 5) physician’s intent to work long-term in a designated HPSA or MUA; and 6) effect of placement on other Georgia programs and policies. The thirty (30) waiver slots are limited annually as follows:

> 8 slots per medical specialty or position type

< 4 slots per employer/facility (teaching hospitals are exempt from this limit)

Up to ten (10) of the thirty (30) waivers may be allotted to physicians not located in federally-designated shortage areas if they serve patients who reside in federally-designated shortage areas.

Applicant employers must:

• Be located in a currently designated HPSA, MHPSA, or MUA.
• Be currently in operation or ready to operate at the time the J-1 physician commences employment.
• Use a schedule of fees consistent with locally prevailing rates and designed to cover the site’s reasonable costs of operation.
• Do not discriminate in the provision of services to an individual (i) because the individual is unable to pay; (ii) because payment for those services would be made under Medicare or Medicaid/PeachCare for Kids; or (iii) based upon the individual’s race, color, sex, national origin, disability, religion, age, or sexual orientation.
  • Charge indigent patients on a sliding discounted fee schedule based on current federal poverty guidelines and post notice of availability where patients can easily see it;
  • Accept assignment for Medicare beneficiaries and enter into an agreement with the Georgia Department of Community Health to provide services to Medicaid/PeachCare for Kids beneficiaries.
• Make a good faith effort to recruit for a U.S. citizen/permanent resident prior to signing a contract with a J-1 physician and submitting a J-1 visa waiver application.
• Agree to sponsor the J-1 physician’s H-1B visa for three years and to execute an employment contract consistent with all GA 30 policy requirements.
• Agree to submit a completed Placement Verification Form to State Office of Rural Health (SORH) within 30 days after employment commences.
• Agree to submit semiannual reports as directed by SORH throughout the three-year obligation.
• Agree to notify SORH, in writing, of any change in the employment contract within 30 days of said change and of any pending complaints concerning the J-1 physician with the Georgia Composite Medical Board or the Georgia Department of Community Health, as applicable.
• Agree to participate in site visits by SORH staff.

Application contents and assembly instructions are described at:

https://dch.georgia.gov/sites/dch.georgia.gov/files/GA%2030%20Policy%20%20Application%20May%202018.pdf.

Other Comments

A Conrad 30 waiver temporarily lifts the two (2)-year home residency requirement so that the sponsoring employer can petition to U.S. Citizenship & Immigration Services (USCIS) for H-1B Temporary Worker status for the foreign physician. Failure of the foreign physician to finish out the employment contract will result in the home residence requirement being reinstated. A foreign medical graduate who is granted a waiver under Pub. L. 103-416 and who does not fulfill the requisite three (3) year employment contract or otherwise comply with the terms and conditions imposed on the waiver is ineligible to apply for a change to any other temporary visa status.