Potential solution for doctors who missed H-1B cap

In August 2013 I was approached by a physician who owned a family practice clinic and wanted to sponsor an immigrant doctor to work at this clinic as an H-1B employee.  The immigrant doctor previously held an H-1B but was exempt from the 65,000 H-1B cap because her initial employment was at a nonprofit hospital.  Because she worked at a not for profit for her initial H-1B, it was not counted against the 65,000 cap.  Therefore, any future H-1B petitions filed by another employer had to be filed during the H-1B cap season or had to be filed under one of the H-1B cap exemption rules.  At the outset, it looked as if the only way for the immigrant doctor to obtain H-1B status would be to wait until April 2014 to apply for H-1B status and hope that she would be one of the lucky 65,000 H-1B petitions to be reviewed by USCIS.

In the course of my discussion with the physician who owned the family practice clinic, I came to find out that the owner wanted the potential H-1B doctor to work at his clinic, but also to spend at least half of her time at a not for profit hospital where the clinic saw many of its patients.  Because the job involved working at a not for profit hospital part of the time, we were able to explore the possibility of the doctor obtaining an H-1B with a cap exemption.  USCIS refers to the family practice clinic in this case as a “third party petitioner” because the family practice clinic is petitioning the immigrant doctor for H-1B status, yet the location of the worksite is at the not for profit hospital.

In order to qualify for the exemption we had to show that the doctor would work at “a qualifying institution that directly and predominately further[s] the normal, primary, or essential purpose, mission objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research”.  A key component for meeting this requirement was to show that the not for profit hospital had an affiliation agreement with an institution of higher education and that the immigrant physician would be working in furtherance of the hospitals objectives.

After obtaining the required documents we were able to file the H-1B petition and obtained an approval notice in about fifteen days via the premium processing program.  If you are a physician who will be splitting time between a for profit clinic and a not for profit hospital, this solution to the H-1B dilemma may work for you too.  Contact Atlanta, Georgia immigration attorney Rahim Dhanani if you are a physician and would like to explore this option.

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