It's too late for me to apply for H-1B status under the cap. What can I do to obtain work authorization?

This is unfortunately all too common a situation, given that nowadays applicants seeking cap subject H-1Bs must have their petitions filed during the first week of April in order to try to secure an H-1B slot to start working on October 1st. This fact was again confirmed today with USCIS's announcement that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.

So what happens to physicians and employers who were not able to finalize employment arrangements in March? Here are a few options worth considering.

1. Cap exemption

Is your employer designated as a non-profit organization by the federal government? If so, is your employer a research organization or is it affiliated with an institution of higher education (such as a college or university)? If so, your employer may be cap exempt.

If your employer is not cap exempt, there may yet be alternative cap exemption possibilities. Will your non-cap exempt employer allow you to work at a cap exempt location for a certain number of hours per week? If so, you may be eligible for a cap exempt H-1B based on your work location, rather than your employer. Finally, if you can find a cap exempt organization to file perhaps a part-time H-1B for you, your non-cap exempt employer may be able to file a concurrent H-1B for you. As long as you are also working for the cap exempt organization, your employer's concurrent H-1B would be valid.

2. Physician National Interest Waiver

Foreign physicians from most countries are eligible to concurrently file NIW petitions and adjustment of status applications. This allows the physician to secure general work authorization, which can be used for employment anywhere, while the adjustment of status application is pending. With such authorization, the physician has time to file for a cap subject H-1B next season. Unfortunately, due to excessive visa backlogs, Indian and Chinese nationals cannot benefit from this concurrent filing.

3. O-1 or extraordinary ability petitions

These two remedies have very similar requirements, but the O-1 is a temporary visa and the extraordinary ability petition is a green card process. If you believe you can demonstrate extraordinary ability in your field of medicine (by showing, for example, proof of awards, media exposure, publications, prestigious memberships, significant contributions in your field, and/or a high salary), you may be eligible for one or both of these options.

Please note that this article assumes the physician is not the beneficiary of a Conrad J-1 waiver. Such physicians have no need for cap subject H-1Bs, because they are automatically exempt from the H-1B cap.