A publication of the national Immigration Group of Duane Morris.

H-1B Visa Cap Reached for Fiscal Year 2008

On April 5, 2007, U.S. Citizenship & Immigration Services ("USCIS") announced that, due to extreme demand, the H-1B cap for Fiscal Year 2008 has been reached. Annually, 65,000 new H-1B visas are made available, with an additional 20,000 H-1B visas made available to holders of U.S. master's degrees or higher.

Per regulation, USCIS is in the process of conducting a randomized selection process to determine which petitions will be accorded an H-1B visa number among those received on April 2 and April 3, 2007. USCIS estimates that it received approximately 150,000 cap-subject H-1B petitions on April 2, the first day filings opened for FY 2008. USCIS also estimates that, of those petitions, approximately 13,000 are to be applied to the master's degree cap of 20,000, which would indicate that there still may be H-1B visa numbers available to those beneficiaries who hold a U.S. master's degree or higher.

Fortunately, if you are a physician, you may fall into one of the following categories, and thus you may be exempt from the H-1B cap:

  • A J-1 physician who is the beneficiary of an interested government agency waiver based on his/her commitment to work in a medically underserved area;

  • A physician who was previously granted status as an H-1B nonimmigrant in the past six years and has not left the US for more than one year since attaining that status (such as medical residents or fellows);

  • A physician who is going to be employed by an institution of higher education, such as a college or university;

  • A physician who is going to be employed by a nonprofit entity affiliated with an institution of higher education; or

  • A physician who is going to be employed by a nonprofit research or governmental research organization.

Upcoming Conference in NYC

On Saturday, May 19, 2007, Duane Morris will host our annual free immigration seminar for foreign-born medical professionals training in the US who wish to explore their options for remaining in the US at the completion of their residency or fellowship programs. This seminar will be held in New York and is designed to share information about J-1 eligible positions and present additional support materials to participants. Topics will include:

  • How to navigate the process of obtaining a J-1 waiver position

  • Available J-1 waiver programs and processing times

  • Alternative visa options

  • Permanent residence process
Conference Information

Date: Saturday, May 19, 2007
Registration: 12:30 p.m.
Program: 1 p.m. to 4 p.m.
Location: Doubletree Metropolitan Hotel New York
569 Lexington Ave at 51st St.
New York, NY 10022

R.S.V.P. by Friday, May 11
Online: Registration Form
Fax: 215.979.1020, Attn: Theresa Garcia
Email: Theresa Garcia, garcia@duanemorris.com

National Interest Waivers - Specialty Care NIWs Now Being Accepted

USCIS recently announced that it has expanded the National Interest Waiver program to accept petitions filed on behalf of physicians who provide specialty care. Prior to this change, only physicians who practiced primary care medicine in a designated shortage area were eligible to file NIWs. Now, NIWs may be submitted on behalf of primary or specialty care physicians or physicians who work full time at a VA facility. One of the benefits for the physician is that the family members of the physician may be eligible to obtain work authorization and an advance parole travel document through the filing of an NIW and Application for Adjustment of Status. Please note that concurrent filing of the NIW and Application for Adjustment of Status is only available if the physician's priority date is current; hence, this option is not currently available for doctors from China or India due to quota backlogs.

If you are interested in filing under this new provision, please contact our office.

DOS Announces 2008 Diversity Visa Lottery - Important Considerations for J-1 Physicians?

One of the most frequent questions we hear from J-1 physicians is whether or not they should apply for the "visa lottery" program sponsored by the Department of State. Unfortunately, in many cases, the answer is "no." To qualify for the DV lottery, you must be eligible to apply for permanent residence between October 1, 2007, and September 30, 2008. If you plan to apply for a waiver where you will be required to work in a medically underserved area for three years, or if you are currently working in H-1B status and your three-year commitment will not be complete until after September 30, 2008, you will not be eligible to apply for permanent residence during the time period set forth by the Department of State. You can apply for the DV lottery, and you may even win, but in many instances, the timing will not permit you to ultimately apply for permanent residence.

If you have questions about your timeline, and how it relates to the DV lottery, please contact us at mlfunk@duanemorris.com.

USCIS Begins Premium Processing of Additional I-140 Petitions

At present, there are three types of I-140 petitions for which an employer can request premium processing:

  • EB-1, Outstanding Professors or Researchers

  • EB-2, Advance Degree Professionals (non-National Interest Waiver (NIW))

  • EB-2, Exceptional Ability (non-NIW)

The premium processing filing fee remains at $1,000, and USCIS continues to process these cases within a 15-day period for response. Concurrent I-140 immigrant petition and eligible I-485 adjustment of status application filings can still be filed concurrently.

If you have filed, or plan to file, an I-140, EB-1 petition, Outstanding Professor/Researcher I-140 petition, or an I-140 petition on the basis of your PERM application, you may wish to consider premium processing.

Unfortunately, USCIS is not yet offering premium processing for National Interest Waiver I-140 petitions. Please check back on our website (www.duanemorris.com) for updates.

USCIS - Online Filing of AR-11

USCIS has recently updated its system and you can now notify USCIS of your change of address online at www.uscis.gov. Additionally, if you are a client or a regular recipient of our informational Alerts, we would appreciate being notified immediately of any change in your contact information.

Important Reminder Regarding Medical Licenses

Are you planning on applying for a J-1 waiver sometime in the future? Do you know where you want to go? It is important to remember to apply for your medical license as soon as possible, for many reasons.

  • Many State 30 programs require you to be licensed in your state of intended employment before the waiver request can be filed. In addition, other states require that you prove that you have, at a minimum, submitted your license application.

  • USCIS regulations require that you meet the requirements for H-1B status at the time of filing your H-1B petition and one of those requirements is that you be licensed (either with a permanent or temporary license) at the time of filing. Note that if you have a temporary license, your H-1B petition may be approved only for one year, rather than the full three-year period.

  • Be aware of special requirements that vary from state to state. For example, did you know that in many states it is not possible to apply for a license if it has taken you more than seven years to pass all three USMLE steps?

The American Medical Association maintains a list of links to most state licensing boards. The list can be found at http://www.ama-assn.org/ama/pub/category/2645.html

If you have any questions or would like to suggest a topic to be covered in our upcoming publications, please contact one of the attorneys of our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

Duane Morris LLP, among the 100 largest law firms in the world, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets, and as part of an international network of independent law firms, Duane Morris represents clients across the United States and around the world.