Physician News: Payroll Rules Every H-1B Physician Should Know

Foreign Physician Toolkit
Tuesday, August 19, 2014 - 2:15pm

While the rules below apply to every foreign national working on an H-1B visa, the nature of work for physicians can create a prevalence of issues in the areas listed below. Physicians and their employers need to be mindful of all of the following rules•

  • H 1B Employees must be paid as W-2 employees in accordance with the salary stated on the H-1B petition and LCA
  • H 1B Employees may not be paid as independent contractors (1099) by any employer. Should an H-1B physician work a few shifts per month for a particular employer or hospital, they may not be paid as an independent contractor.You should contact your immigration attorney to discuss any alternatives..
  • H 1B Employees may not receive honorariums for speaking from any sourcem including drug companies or universities. There are some rare exceptions, but you should discuss with your immigration attorney in advance of accepting any such offers.
  • As long as an H-1B Physician works forty hours per week for the J-1 waiver/ H-1B employer, concurrent part-time employment is permitted, but ONLY if the concurrent employer also files an H-1B petition.

INADVERTENT PAYROLL ERRORS SUCH AS THE ISSUANCE OF A 1099 RATHER THAN A W 2 OR ISSUING A W 2 IN THE INCORRECT AMOUNT CAN RESULT IN THE FOLLOWING:

  • A finding that the H 1B employee has violated his H 1B status and is thus, out of status.
  • Revocation of both the J 1 waiver and the H 1B petition
  • Debarment of the H 1B employee from adjusting status to permanent residence in the United States.

Additionally, H 1B physician employees may not receive insurance benefits in lieu of salary.

Anytime the salary arrangement of an H-1B physician is impacted whether through transfer, schedule change, alternate employment,temporary lay off or leave of absences, they should consult with their immigration attorney to ensure their status is not improperly impacted.