Currently, up to 65,000 H-1B visas (6,200 for workers from Chile and Singapore, 58,200 for all other nationalities) may be issued each fiscal year for professional workers. The fiscal year begins on October 1 and ends September 30. Because an employer can apply for an H-1B visa up to six months in advance of the anticipated starting date of employment, the USCIS will accept applications for the new fiscal year (October 1) on or after April 1 of the year. In other words, applications can be filed as early as April 1 for an October 1 approval date.
The cap only applies to “new employment,” so in general, a person who already has an H-1B and applies for another H-1B with another employer is not subject to the cap. However, if the worker obtained H-1B status through a cap-exempt employer and then seeks to change employment to an employer that is not cap-exempt, the new application will be subject to the cap. For example, a physician finishes his residency in H-1B status with a university hospital on June 30, 2019. He has a contract with a private facility to start work on July 1, 2019. His new employer will sponsor the H-1B visa but the petition will be counted towards the CAP. If the CAP has already been reached, the physician cannot work until October 1, 2008, assuming the employer files the H-1B application early enough (April 1).
Workers Excluded From The CAP:
- Physicians who receive a J-1 waiver of the two-year foreign residency requirement and agree to work in a medical shortage area.
- Workers who are employed by universities or colleges or
- Workers who are employed by non-profit organizations affiliated with universities or colleges (“cap-exempt employers”). This is useful for physicians who use H-1B status to complete their residency for such institutions.
Physicians who completed residency in J-1 status but returned home for two years as required OR who received a hardship or persecution waiver must also be mindful of H-1B cap issues.
In order to qualify for an H-1B visa to practice patient care medicine, the foreign born physician must pass all parts of the USMLE, NBME or FLEX, and the English language proficiency test given by the ECFMG. In addition, the physician must be licensed to practice medicine in her intended state of employment. Usually, this means that the physician must have completed a medical residency in the U.S. However, this does not apply in the case the physician obtains an H-1B visa to complete a U.S. medical residency program. Furthermore, not all foreign born physicians are subject to these requirements. These requirements only apply to foreign medical graduates (FMGs).
For purposes of the H-1B visa, the following foreign born physicians are not considered FMGs:
- Physicians of national or international renown;
- Graduates of U.S. medical schools;
- Physicians not practicing patient care (e.g., medical researchers).
Finally, J-1 medical residents must return home for two years or obtain a J-1 waiver before applying for an H-1B visa
U.S. immigration law provides a special class of visa (the O-1 visa) for persons who have an extraordinary ability in the sciences, arts, education, business or athletics. Accomplished foreign physicians can use this visa program to work in the United States for an initial period of three years for each new employer, after which this visa may be renewed indefinitely. To qualify as an “extraordinary ability alien,” the applicant must demonstrate “a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor.” Specifically, the physician must be the recipient of either (i) a major, internationally-recognized award or (ii) at least three of the following distinctions:
- The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;
- The physician belongs to professional associations requiring outstanding achievements of their members, as judged by recognized national or international experts;
- The physician has been the subject of articles in major media or trade publications relating to his work;
- The physician has participated on a panel or as a judge of the work of others in his area of practice;
- The physician has made original scientific or scholarly contributions of major significance;
- The physician has written scholarly articles that have been published in professional journals or other major media;
- The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; and
- The physician has commanded a high salary or other compensation.
Caveat for Physicians: For physicians who qualifies as “extraordinary ability alien,” there are significant advantages to this type of visa. For example, the O-1 visa can be used to avoid the two-year foreign residency requirement of the J-1 visa. Rather than being restricted to employers who will sponsor them for an IGA J-1 waiver, the extraordinary ability physician may work for any employer willing to sponsor him for the O-1 visa. However, the physician must eventually comply with the two-year foreign residency requirement or obtain a waiver, if she ever plans to become a permanent resident. Also, the O-1 visa may be used by the physician who has reached the six-year limitation period of the H-1B visa. In such a case, the physician can extend his employment indefinitely if his employer’s O-1 petition is approved
The TN visa classification is for Canadian and Mexican citizens. It was originally created as part of USMCA (formerly NAFTA*) and provides for the temporary entry of professionals to work in a specific set of professional occupations.
Canadians and Mexicans may be eligible to work in the United States as USMCA professionals under the following conditions:
- Applicant is a citizen of Canada or Mexico;
- Profession is on the NAFTA list;
- Position in the United States requires a TN professional;
- Applicant will work in a prearranged full-time or part-time job for an employer. Self-employment is not permitted;
- Applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.
With some exceptions, each profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree. In some professions, an alternative to a bachelor's degree is listed. For some professions, experience is required in addition to the degree. For a complete list of professions with minimum education requirements and alternative credentials, see Appendix 1603.D.1 of NAFTA Chapter 16.
Obtaining a TN visa is generally expeditious. TN visas can be obtained by filing a petition with the U.S. Citizenship and Immigration Services (USCIS) or at a US port of entry (Canadian citizens) or at a US embassy or consulate (Mexican citizens).
*Late Sept. 30, 2018, the United States, Mexico, and Canada agreed to a new trade deal between the three countries. The new deal, the United States-Mexico-Canada Agreement (USMCA) would, if approved by all three countries, replace the North American Free Trade Agreement (NAFTA). While the trade deal may be changing, the provisions that provide for the temporary entry of professionals to work in the U.S., currently known as the TN (Trade NAFTA) visa category, will remain the same as they were in NAFTA.
The E-3 classification applies only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States
Requirements to qualify for an E-3 visa:
- National of Australia
- Have a legitimate offer of employment in the United States
- Possess the necessary academic or other qualifying credentials
Will fill a position that qualifies as a specialty occupation
Employers are subject to the minimum prevailing wage guidelines and Labor Condition Application (LCA) obligations.
E-3 visas are approved by the U.S. Citizenship and Immigration Services (USCIS) for an initial term of two (2) years and extensions of up to 2 years; no maximum number of extensions, with some exceptions.
The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent must file an H-2B application with the U.S. Citizenship and Immigration Services (USCIS) after obtaining a Labor Certification from the department of Labor (DOL).
There is a numerical limit, or "CAP," on the total number H-2B visas that can be granted during a fiscal year (October 1 to Sept 30). Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.
Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, and on workers who are exempt from it, see the Cap Count for H-2B Nonimmigrants Web page.
H-2B Process:
- Step 1: Petitioner submits temporary labor certification application to DOL.
- Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS.
- Step 3: Prospective workers outside the United States apply for visa and/or admission at the respective U.S. Embassy or Consulate.
Generally, USCIS may grant H-2B classification for up to the period authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.
A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.