January, 22. 2024, Legal Intelligencer article by Lamb McErlane Health Law attorneys Vasilios J. (Bill) Kalogredis and Sonal Parekh.

The current health care worker shortage in the United States is an ongoing nationwide problem that does not appear to be going away any time soon. The Association of American Medical Colleges projects a shortage of up to 124,000 physicians by 2034.[1] While the insufficient supply of U.S. health care workers in only worsening,[2] studies show that roughly 263,000 foreign national health care professionals in the U.S. are under- or unemployed.[3] Accordingly, one strategy health care employers should consider, and prospective immigrant employees should leverage, is hiring international workers via employer-based immigration sponsorship. While several visa types allow for the hiring of international workers (e.g., J-1, H-1B, O-1, E-2, E-3, H-1B1, TN, and F-1 OPT/STEM OPT), this article will focus on H-1B visas.

Background

Through the H-1B program (the “Program”), U.S. companies may employ foreign workers in occupations that require (i) the theoretical and practical application of specialized knowledge and (ii) a bachelor’s degree or higher in such specialty, or its equivalent. Though any position requiring a bachelor’s degree or higher may qualify for the Program, high-demand fields typically comprise of science, healthcare, engineering, and information technology. The Program provides 65,000 visas annually, with an additional 20,000 visas set aside exclusively for the advanced degree exemption (i.e., foreign workers who hold a U.S. master’s or doctoral degree) (collectively referred to as the “H-1B Cap”). The H-1B visa may be approved up to 3 times for a maximum of 6 years with an H-1B status. Because there are more applicants than available visas each year, the Program operates through an electronic lottery system to determine which employers may sponsor specifically identified foreign nationals for H-1B status. The U.S. Citizenship and Immigration Services (“USCIS”) received 780,884 H-1B registrations for Fiscal Year (“FY”) 2024, representing a 61 percent increase over the FY 2023 filing season.

Brief Process Overview

In order to be eligible to apply for and obtain H-1B status through employment as part of the lottery, registrants must register during the initial 2-week registration period in March each year. When the window closes, it is no longer possible to register in the H1-B cap lottery until the following fiscal year[4]. Once the registration period closes, the USCIS makes its selections and notifies registrants accordingly. All H-1B petitions for selected registrations must be filed between April 1^st and June 30^th. If USCIS finds that it has not exhausted all of the H-1B Cap, then it may conduct a subsequent registration later in the year (i.e., it will make a second round of selections). Employers whose registrations are selected in the lottery then have a 90-day window in which to file the selected H-1B cap-subject petitions. Regardless of when the H-1B petition is filed and/or approved, the employment start date is no earlier than October 1 of that calendar year.

Three types of facilities are exempt from the H-1B Cap (“Cap Exempt Entities”): (i) institutions of higher education; (ii) nonprofit organizations or entities that have an academic affiliation or relationship; and (iii) nonprofit or governmental research organizations.

How to Leverage the Process

Foreign healthcare workers looking to secure an H-1B visa through employer sponsorship should remain acutely aware of the registration process and dates. Furthermore, they should look to leverage their status as much as possible in order to secure employment that truly supports their sponsorship.

First, foreign healthcare workers should look to apply for and secure employment with Cap Exempt Entities. This would allow them to bypass the lottery system and hold and maintain H-1B visa status. During the period of maintaining such status, the workers may apply for a green card or a different visa status to enable them to remain working in the U.S. for a longer period of time.

Second, if applicable, international healthcare students looking to obtain employment should leverage their Optional Practical Training (“OPT”) status. The OPT option authorizes students on an F-1 visa to work in a position that is related to the student’s area of study. F-1 students are eligible for 12 months of OPT per degree level and those in a STEM field are eligible for an additional 24 months.[5] Because OPT can be used before or after graduating, students should use OPT for an employment position after graduation. Not only will this grant the student time to gain additional working experience, but the student can also leverage the OPT time with the prospective Employer to negotiate H-1B sponsorship.

Last, if a foreign healthcare worker is able to find an employer willing to sponsor him or her for an H-1B visa, he or she should ensure to negotiate the employment contract. Specifically, the worker should negotiate the outcome and next steps if he/she does not get selected in the lottery process. Foreign employees should be careful to ensure the applicable employment contract does not only require the employer to sponsor the employee once for the H-1B visa, but continue to do everything in the employer’s power to sponsor the employee going forward until H-1B status, or the equivalent, is attained. These negotiations are paramount to maintaining the ability to stay and work in the U.S. Those who can leverage their OPT status may have an advantage here.

Conclusion

Because of the various avenues available, foreign healthcare workers should keep abreast of the different visa types; advantages, disadvantages, and eligibility for each; and the processes and timelines involved. Due to the numerous nuances involved with each visa type, it would be advisable to engage an immigration attorney to advise on best avenues to take. Once an offer for employment in healthcare is received, it is strongly advisable to engage with a healthcare attorney (in conjunction to the immigration attorney) to truly negotiate an employment contract that serves in the foreign worker’s best interests on a short-term and long-term basis.

If you are concerned about how to negotiate your healthcare contract, feel free to contact Vasilios J. Kalogredis, Esq. at bkalogredis@lambmcerlane.com or 610-701-4402 or Sonal Parekh, Esq. at sparekh@lambmcerlane.com or 610-701-4416.

Vasilios J. (Bill) Kalogredis, Esq. has been advising physicians, dentists, and other healthcare professionals and their businesses as to contractual, regulatory and transactional matters for over 45 years. He is Chairman of Lamb McErlane PC’s Health Law Department. Bill can be reached by email at bkalogredis@lambmcerlane.com or by phone at 610-701-4402.

Sonal Parekh, Esq., who contributed to this article, is a practicing attorney at Lamb McErlane PC who focuses on healthcare transactional matters and a broad range of healthcare regulatory-related issues on behalf of healthcare systems, physicians, dentists, and other healthcare providers, and is a pharmacist by education and training. Sonal can be reached by email at sparekh@lambmcerlane.com or by phone at 610-701-4416.

*This alert is for educational purposes only and is not intended to be legal advice. Should you require legal advice on this topic or have any questions or concerns, please contact Vasilios J. (Bill) Kalogredis, Esq. or Sonal Parekh, Esq.

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[1] IHS Markit Ltd., The Complexities of Physician Supply and Demand: Projections From 2019 to 2034, Ass’n of Am. Med. Colleges, at 3 (June 2021), https://www.aamc.org/media/54681/download.

[2] Matthew Stevenson, Demand for Healthcare Workers Will Outpace Supply by 2025: An Analysis of the U.S. Healthcare Labor Market, Mercer HPA Health Provider Advisory (2018), https://www.mercer.com/content/dam/mercer/attachments/private/gl-career-2018-demand-for-healthcare-workers-will-outpace-supply-by-2025-analysis-healthcare-labor-market-mercer.pdf.

[3] Jeanne Batalova, Immigrant Health-Care Workers in the United States, Migration Policy Inst. (May 14, 2020), https://www.migrationpoolicy.org/aarticle/immigrant-health-care-workers-united-states-2018.

[4] The federal fiscal year is from October 1^st through September 30^th.

[5] Natalia Gouz, Educating International Students on Work Options in the United States, 1487 The Legal Intelligencer 7, September 14, 2023.