Avoiding the H-1B Quota

One of our for-profit hospital clients has traditionally included in its medical residency training program significant numbers of foreign doctors on H-1B visas. When the H-1B quota was lowered to the point that H-1B visas were unavailable by the time the hospital selected its medical residents, the hospital feared that it would lose an important supply of physicians because, as a for-profit hospital, it was subject to the H-1B quota.

Ron Klasko developed a cutting edge argument that the doctors were exempt from the quota because, even though the hospital itself was quota-subject, the medical residents would spend a percentage of the time doing the didactic part of their training at a building owned by a university. This argument was accepted by USCIS, based on our argument that the quota exemption is not based on whether the employer is a university, but whether the employment will occur, at least in part, at a university.

More than a year after we successfully used this strategy for the benefit of our hospital client, USCIS published a memorandum accepting the theory for general applicability.