Monday 28 November 2011

H1B cap and medical residency application

The H-1B Program
This program allows for foreign citizen to seek employment in US in specialty occupations. Residency training per say does not fall under the purview of occupation but training which is why several top tier programs do not accept H1b visa. They accept the position specific and appropriate visa which is J1 or exchange scholar visa. According to USCIS, U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. 

Some places are special
If you are interviewing at a university hospital, a program at a not for profit hospital or community hospital affiliated to a university then you will likely fall outside of the H1b cap. A "cap" is an arbitrary numerical limitation that curbs the number of technically expert workers employed in the US. This cap at present is set at 65,000. Accordingly USCIS has made provisions to keep some petitions exempt from the cap under the advanced degree exemption. Unless otherwise exempt from the cap, petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree.

                                                     H1B visas
                                          |                                  |
                                 cap exempt               non cap exempt
                             (Universities etc)                        |
                                                                   limit at 85,000
                                                             |                                  |
                                             advance degree exception         all others
                                                        (20,000)                     (65,000)

Residents can be trainees or employed workers

Importantly, residents who pass step 3 can apply for H1B visa as this allows for the hospital to petition your case as a worker and not as a trainee. Prior to passing step 3, the institution cannot petition your case as a worker and thus you have to obtain a J1 visa from ECFMG. Thus residents are regarded as H-1B workers and are thus cap exempt when 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. Thus they are are not subject to this numerical cap.For those gunning for a J1 visa look up on J1 waiver requirements made easy here.


  1. I matched at a program sponsoring H1B. How are the chances ,if at all for a H1B visa to be rejected.

    1. congratulations! if the program is a non-profit organization like university hospital it is cap exempt and the chances of visa being denied are exceptionally small, unless something in your paperwork or background raises red flags.

  2. Thanks for replying. My hospital is a nonprofit organisation and I come under the exempt category. But my B1/ B2 visa is rejected twice saying that my ties ae weak but later accepted for a 10 year multiple entry. Is it a redflag?

  3. If I am matched on a J1 visa, am I allowed to do a fellowship after residency or must I return to my country/serve in underserved area first?

    Also, when one gets a J1 waiver and serves in an underserved area, how long must one serve there and when can his status be changed to Green Card holder?

    Amazing informative blog. You are awesome!

    1. Yes, you can do fellowship after residency if you match into a program on J1. With J1 you have 7 years allowable which covers most residencies and a lot of fellowships (3 years residency plus 2,3 or 4 fellowship). You will need to file for a J1 waiver job once your training is done. Service in an under served areas is usually 3 years. You can file for change in status around that time. Best to consult an immigration attorney in the last few years so that they can guide you about next steps

    2. Sorry I have a couple more questions

      1) Does the J1 visa requirement state that I must return to the HOME COUNTRY for 2 years or that I must simply work outside the US for 2 years?

      2) If a couple have a child in the US while on a J1 visa does the child get US citizenship?

      3) Does US citizenship of a child (provided the answer to the above Q is yes) help to change the status of the parents to Green Card holders?

      If any of this is outside of your scope could you please direct me to the relevant sources?

      As always, thanks.

    3. AFAIK: J1 requirement does stipulate home country return.
      2. The child will be a US citizen but I don't know the logistics after that, best to consult an immigration lawyer. Try the immigration forums for advise regarding this issue.


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