Dr. Shah holds full-time H-1B status with his employer but would like to work part-time at the hospital emergency room as an independent contractor. Dr. Davita would like to work with a local locum tenens company full-time after he finishes his last year of his current J-1 waiver position. Neither of these positions appear to qualify for the H-1B visa for lack of an employer. Indeed, most locum tenens recruiters and others turn away highly qualified foreign national doctors, correctly believing that independent contractor positions do not qualify for H-1B visas. Yet many H-1B doctors are legally working in locum tenens and other independent contractor jobs through the little known “self-employed H-1B visa.”
Since 2011, professionals such as doctors, lawyers, engineers, accountants, computer scientists, and others may be approved for H-1B visas to work for the companies they own. Immigration policy confirms that “entrepreneurs with an ownership stake in their companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H-1B visa, if they can demonstrate that the company has the independent right to control their employment.”
Physicians can start a medical office or work as independent contractors, including locum tenens, either full-time or part-time. To do so, the physician must form a corporation or limited liability company (LLC). The corporation or LLC must have a right to control the physician’s employment including the ability to hire, fire, pay, supervise or otherwise control the employment. This requirement is typically accomplished through a separate board of directors or a partnership agreement.
For example, with the help of a business attorney and an accountant, Dr. Shah forms a professional corporation (PC) and appoints three trusted advisors to the board of directors. The PC applies for and is granted a concurrent, part-time H-1B visa, designating the hospital as the work location. The hospital pays the PC for Dr. Shah’s emergency room shifts and issues a 1099 to the PC at the end of the year. The PC is responsible for payments and payroll taxes for Dr. Shah’s employment. This process works as well for locum tenens where the locums agency will pay the PC, rather than the physician.
With the self-employed H-1B visa option, there’s no need to turn away visa candidates for locum tenens or independent contract positions. The proper use of this visa can help fill these vacancies with qualified providers.
This information is provided as an educational service. Consult with an attorney to find out if you have other options to maintain legal immigration status in the U.S.
For a comprehensive evaluation of your immigration options, you are invited to call me at 214-472-2161 or visit my websites at www.badmuslaw.com and www.physicianimmigration.com.