H-1B Visa vs. the J-1 Visa for Graduate Medical Trainees (Doctors who will participate in a U.S. Residency Program)
Doctors have the option of pursuing their Graduate Medical Training in J-1 status or H-1B status. There are advantages and disadvantages to both options. A foreign doctor should carefully consider these options, as they may greatly affect the doctor’s opportunities upon completion of the residency program:
What are the Benefits of the H-1B visa for a Graduate Medical Trainee participating in a Residency Program?
- Doctors in H-1B status are not subject to the two year home residency requirement. As a result, when the doctor completes the residency program, he or she will not require a waiver in order to remain in the U.S. If a doctor enters on a J-1 visa, he or she will need to return to his or her home country at the end of the residency program or obtain a J-1 waiver.
- If the doctor completed a residency program as an H-1B worker, he or she may pursue lawful permanent residence immediately after the conclusion of the residency program. Again, a J-1 exchange visitor will need to obtain a waiver if he or she wishes to pursue lawful permanent residence immediately after the residency program. Moreover, doctors who obtain J-1 waivers based on a sponsorship from an Interested Government Agency Program or based on the J-1 Conrad 30 Waiver may apply for permanent residency after fulfilling their 3-year commitment.
What are the Disadvantages of the H-1B Visa?
- An H-1B worker is only permitted to remain in the U.S. in H-1B status for a total of 6 years. H-1B status is granted in 3 year increments and at the end of the sixth year, the H-1B worker must return to his or her home country for at least one year before being allowed to return to the U.S. in H-1B status. Many residency programs last more than six months and if the doctor is interested in specializing in a particular area of medicine, the residency program will exceed the six year period. In 2000, Congress enacted the American Competitiveness in the 21st Century Act (AC21), which included provisions allowing flexibility of the six year cap. Generally, an individual is permitted to remain in the U.S. in one year increments beyond the sixth year if his or her labor certification has been pending for more than 365 days or if an I-140 petition on his or her behalf has been approved but the doctor is not able to file an adjustment of status application solely because his or her priority date is not yet current. In order for the doctor to take advantage of these provisions, he or she must develop an early strategy for taking the necessary steps leading to lawful permanent residence.
- Employers are subject to attestations made in the LCA, which include the obligation to pay the prevailing wage, and maintenance of certain public access records. Many hospitals prefer the J-1 option, as they may find the obligations (and the extremely high filing fees) imposed on the H-1B employer to be onerous.
- After the conclusion of the residency program, the doctor will likely have used most of their allotted H-1B time. The physician may have difficulty in finding an employer willing to begin immediately taking the steps for lawful permanent residence, and the physician may not be in the position to change to a different nonimmigrant status.
- If the physician wants to obtain employment via private practice, the physicians would be subject to the annual H-1B cap. In recent years, the annual allotment of 65,000 H-1B visas has been met within the 6 months of the first day that an employer is permitted to submit petitions for new H-1Bs (April 1). On April 1, 2007, the H-1B cap was met on the first day. Over 100,000 petitions were filed on that day, forcing the United States Immigration Service (USCIS) to select randomly petitions for adjudications. As a result, more than half of the petitions submitted were returned.
- The physician must also meet the licensing and credentialing requirements prior to filing for an H-1B visa while a J-1 visa doctor is not subject to these requirements.