DELAWARE IMMIGRATION LAWYER BLOG

Foreign physicians who received medical training in J-1 program must either return to their country or obtain a waiver before they can apply for an immigration visa, or change to almost any other nonimmigrant status. A J-1 waiver can be granted when the physician commits to practice medicine in an underserved area of the United States for at least three years. An area that is designated as Health Professional Shortage Area, Medically Underserved Area/Population or a VA facility normally qualify such requirement.

J-1 waiver applicants first submit their application (DS-3035) to DOS (Department of State) processing center. Subsequently, the applicants and the sponsoring employer must submit all information to IGA (Interested Government Agency) which will review the application and then forward the recommendation to DOS Waiver Review Division (WRD). After WRD issued its own recommendation, the case will be forwarded to USCIS for final decision.

J-1 waiver once granted, the physician will work in H-1b status. Therefore, J-1 waiver applicants must also qualify for H-1b requirements. As soon as WRD issued its recommendation, H-1b application can be submitted so that it can be adjudicated with the J-1 waiver application.

IGA can be a state department of health or any other federal agency, including Department of Veterans Affairs, the Appalachian Regional Commission, Delta Regional Authority and US Department of Health and Human Services.

Please also see State of Delaware website for more information: http://dhss.delaware.gov/dhss/dph/hsm/j1visahome.html

B-1 visa is for the visitor who has an unabandoned foreign residence, intends to visit only temporarily and intends to engage only in permitted business activities.

B-1 business visitor may be admitted for the purpose of enaging in business but not for the purpose of local employment or labor for hire. in distinguishing, the determination would be whether the principal place of business and actual accrual of profits are in the foreign country. Permitted business activities may include

• Engaging in commercial transaction which do not involve gainful employment
• Negotiating contracts;
• Consulting with business associates; and
• Participating in scientific, educational, professional or business conventions, conferences

B visitors may apply for extension of stay in six month increments and may change to other non-immigrant visa statuses.

As of September 25, 2009, approximately 46,700 H-1b cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1b petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, recoked or withdrawn.

Some decisions and cases support that a corporation even if it is owned and operated by a single person may hire that same individual in an H-1B capacity. This is based on the concept that the corporation is a separate legal entity fron its owner. However, self-sponsored H-1Bs are subject to careful review. The parties have to prove existence of a bona fide employer and employee relationship.

As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemptions had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions.

April 8, 2009 Update

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.

Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

Petitions filed on behalf of current H-1B workers, who have been counted previously against the cap, will not count toward the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B in General U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.

– USCIS –

The H-1B is a non-immigrant visa category in the United States which allows U.S. employers to employ foreign guest workers in specialty occupations.

Last year, the H-1B cap (65,000) was reached on the very first day. USCIS has to draw a lottery to determine which petitions would be selected for review and approval. The H-1B cap for individuals with a US Master degree (20,000) was reached on May 1, 2008, one month after the earliest date people can file the petition.

It is highly recommend that employers and employees get ready NOW so that the H-1B petition can be filed on the April 1, 2009.

Note: Not all cases are subject to the cap. H-1B Petitions that are “cap exempt” may be filed at any time during the year.

For more information on H-1B Cap, please read.