Temporary Changes for Certain H-1B Physicians
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
To obtain approval of an H-1B petition, an employer needs to specify in detail the proposed position to be held by the foreign national that is, the position, its salary, its hours, etc. Consequently, deviations from the information initially submitted in the H-1B petition can lead to a finding of H-1B violation and severe consequences to both the foreign national and the H-1B employer. Particularly in the COVID-19 crisis, many healthcare employers have had to significantly readjust the terms and conditions in the employment of their H-1B physicians, but in doing so, they face the risk of violating their H-1B obligations.
On May 11, USCIS issued a memo on temporary policy changes that provides H-1B physicians with J-1 waivers some flexibility in two aspects of their employment: 1) a reduction in hours resulting in part-time employment; and 2) work in a new placement site in order to provide telehealth services. The initiative has been issued considering the disruptive impact of the COVID-19 pandemic on healthcare providers. The main provisions of this policy memo are:
- where an H-1B foreign medical graduate needs to work on a part-time rather than a full-time basis due to quarantine, illness, travel restrictions or other consequences of the pandemic during the declared Public Health Emergency period, USCIS officers will not consider it as grounds to reimpose the two-year home residence obligation or a basis to deny future immigration benefits;
- for H-1B physicians who received waivers through the Conrad State 30 program or through a federal agency, they can provide telehealth services during the Public Health Emergency;
- potential increased protection to H-1B physicians to maintain their immigration status during this period of a declared Public Health Emergency;
- employers are not relieved of their need to fulfill entirely their H-1B compliance obligations, including the need to file appropriate notifications when changes are made to the terms of employment.