24. Fellowship vs. Attending Position: The Big Decision

The following memo discusses probably the most important issues since you have obtained H-1B status for residency, namely planning for the future. This memo is not a substitute for a detailed and comprehensive consultation with an attorney engaged in Immigration law, specifically a practice which deals with physicians. This memo is not meant to be exhaustive of all options, or as a substitution to speaking with an attorney.

I am very often consulted by clients and prospective clients regarding planning for the future. The main question is: “I will be finishing my 3^rd year in H-1B status, and completing my residency program in June. I have the opportunity to join a fellowship, or to get a position as an attending physician. What should I do? What are my Immigration options?”

The answer varies with the individual’s personal needs and feelings, which need to be balanced with the reality of Immigration Law. The answer also varies with the number of years that the fellowship program will be, as well as how many years were spent in the residency program. If the combined time spent in H-1B status in order to complete the residency and fellowship is 6 years, then the physician will have very limited options to renew their non-immigrant status. The H-1B status will not be renewed unless the individual had an application for resident alien status pending with USCIS for at least one year.

If an individual is in a residency program for 3 years, and opts at that point not to go into a fellowship, the main concerns surrounding the H-1B is the following:

1.             H-1B Cap:

As you are aware, the USCIS can only approve 65, 000 new H-1B’s per year. The majority of physicians in residency programs are employed at facilities which were exempt from the cap. Accordingly, when they obtain H-1B status, they were not counted against the 65,000 (195,000 H-1's). Accordingly, they are now fighting for one of the 65,000 H-1B approvals that can be issued each fiscal year.

The US Government year commences October 1 and ends September 30. Over the last 2 years, the H-1B cap has been reached. In 2004, the cap for H-1B visas for the fiscal year 2005 was reached on September 30. For the fiscal year 2006, the period covering October 1, 2005 through September 30, 2006, the H-1B cap was reached on August 10, 2005. Accordingly, unless Congress intervenes, there is approximately a one year, 3 month wait for new H-1B’s. There are discussions being made regarding new and vast changes in Immigration law which may encompass the H-1B situation. We will keep our clients posted as to any developments on this issue.

If you have previously been counted against the H-1B cap, or you are obtaining a position at a facility that is exempt from the cap, then you should not have any problem obtaining your H-1B status, except for the licensure issue discussed below. If there are delays in obtaining the license, options exist for maintaining your status. These options include filing for visitor status while you are awaiting board examinations, filing for H-4 status if your spouse has H-1B status, extending the time of your residency, or obtaining some type of position at your presently-exempt facility, or simply departing the United States. 

2.             Filing for the H-1B without a licence:

The USCIS requires that at the time of filing the H-1B petition, the individual qualifies for the Immigration benefit. Accordingly, the USCIS can deny and has denied H-1B petitions, if the license was issued after filing the H-1b petition. We have seen requests for evidence requiring proof that the license was issued prior to the filing of the H-1B petition and denials of H-1b petitions when the license was issued after the H-1b petition was filed.. I have had numerous  former clients who have come back to me, with requests for evidence from Immigration asking for this proof.

If your heart and mind is set on completing a fellowship, you must be mindful of the fact that if you are doing a 3 year fellowship, you may be running out of time in non-immigrant status to remain in the United States. If you have completed 6 years in H-1B status, you will be unable to renew your H-1B status except as discussed above. However, you may qualify for O-1 status. Please see the memo in this pamphlet which discusses this option.

If you are doing a 3 year fellowship, for example in Cardiology, and you completed a residency in Internal Medicine, you may be able to start an application for Alien Employment Certification, based upon a position as an Internist, if you were able to find this position. However, you will be required to be employed as an Internist, once your application for resident alien status is approved. Should you change your mind, after you application for resident alien status has been approved, and you have been employed for several months as an internist, you should be able to be free to change to any position that you seek, even if it is a Cardiologist. If you are doing a 3 year fellowship, and you have exhausted your time in non-Immigrant status, the new PERM regulations of the labor certification procedure may be of benefit for you, assuming that the case proceeds as fast as intended, and assuming that the supply for immigrant visas in this category is not exhausted. You must discuss these options with a practitioner. Assuming that a case is started for labor certification, and is filed when you finish the fellowship, if the application for alien certification is approved within a few months, and your employer is able to file a petition for an immigrant worker, and you are able to file an application for adjustment of status within 6 months of your present H-1B status expiring, you will be able to remain in the United States, and adjust your status in the United States.

If your spouse is able to proceed as a professional through this procedure, you will be able to benefit through your spouse’s case. Accordingly, if everything proceeds on a timely basis, it may not be necessary for you to depart the United States. As stated in the prelude of this memo, these issues are very complicated. It is imperative that you maintain close contact with your Immigration attorney throughout your time in residency, in order to plan adequately for your future.

If you are obtaining a position from a facility that is not exempt from the Cap, then, unless USCIS makes a mistake, the H-1b petition will be approved with an October 1 start date.  As stated above, you must maintain your non-immigrant status through October 1, or USCIS will not grant an extension of status or employment authorization when the H-1b petition. The USCIS has denied cases in that circumstance. This office does not recommend that you or your prospective employer allow you to be employed while the case is pending under these circumstances, by relying on the “Portability Provisions” of USCIS law.  Even if you did, once the petition is adjudicated you must cease employment, even according to the opinion of those attorneys who interpret the law to allow for employment as a result of “Portability”.  Again, this office does not advise its clients to rely on the portability provisions, under these circumstances.

The key to resolving these issues is proper planning.  Please consult with a qualified Immigration Law attorney to appropriately plan for your circumstance.

Last Updated: November 16, 2005