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Immigration Options for Physicians

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The United States is currently experiencing a shortage of physicians but the options for foreign physicians are still limited by the Health Professions Educational Assistance Act of 1977. As a result, most physicians come to the U.S. through the

Graduate Medical Education programs (“GME”). GME refers to any type of formal medical education typically sponsored by hospitals, clinics, health care facilities, or institutions with or without medical affiliations. The visa options that are available for GME purposes include: J-1 Exchange Visitor Program; H-1B Temporary Worker; J-2 employment authorization; E-3 Australian temporary worker status; F-1 Practical Training or J-1 Practical Training; O-1 alien of extraordinary ability; or any of the enumerated grounds for employment eligibility appearing within 8 CFR §274 a.12(a).

  1. J-1 Visa:

The most popular category is the J-1 Exchange Visitor Program, which is administered by the Educational Commission on Foreign Medical Graduates (“ECFMG”). Another type of J-1 is the Professor and Research Scholar Program, which is managed directly by an institute of higher education (including universities or medical schools). The ECFMG has an exclusive designation to administer the J-1 Exchange Visitor Program and issues a DS-2019 Form directly to the qualifying foreign national

In order for ECFMG to issue a DS-2019 form, the physician must obtain a “home country concurrence” statement from the Ministry of Health of their home country specifying the need for physicians to be trained in the medical discipline. The physician must also file a written assurance that he/she will return to the home country to serve in that field for at least two years. The overall description of activities that the Exchange Visitor (“EV”) will be performing in the U.S. must be submitted to and approved by the ECFMG.

The failure to maintain program status for more than 120 days beyond DS-2019 constitutes a violation. In order to reinstate EV status, the EV would have to prove: (1) the violation of status resulted from circumstances beyond his/her control; and (2) the failure to receive reinstatement to lawful status would result in unwarranted hardship to the EV.

The duration of the J-1 Exchange Visitor program is either seven (7) years in progressive training or the period of time that is required for the training purposes. In order to obtain an extension, the EV must satisfy the “exceptional need” requirement. Under the “exceptional need” requirement, the EV’s home country must demonstrate how the additional time will satisfy crucial practice needs in the home country. The physician must also show a continuing intention to depart the US at the conclusion of the training. Note that the extension request may not be filed until the physician is in the final 30-day grace period[1] of his or her status.

Even if the physician decides to file for a J-1 waiver, he/she may still file an extension request while the waiver is pending. The Department of State (“DOS”) will authorize J-1 extensions up until the point at which the waiver application has received a favorable recommendation. The DOS will not consider the filing of the waiver as a negative factor for J-1 extension purposes. However, the physician must disclose on his/her extension application that he/she filed a waiver.

Physicians may file for an extension of their J-1 visas for the purpose of Board Examination. In order to obtain an extension on this basis, an applicant must apply directly to the ECFMG and submit evidence of registration for the exam, adequate financial resources, and proof of health insurance for the duration of his/her stay. Typically, such extensions are granted for a duration of six (6) months.

  1. Two-year Residence Requirement:

J-1 Physicians are subject to a two-year home residence requirement. Thus, generally, before J-1 Physicians can obtain “H” or “L” visas or permanent resident status in the US, they must spend a two-year period in their country of nationality or in the country of their last permanent residence. One should note that the two-year residence requirement does not need to be continuous; however, brief or casual periods of time spent in the home country will not count toward fulfillment of the two-year home residence requirement. The periods spent in one’s home country must be “meaningful.” J-2 dependents are also subject to the same residency requirement.

Some are able to postpone the residence requirement by departing the US and obtaining another nonimmigrant status. Nonetheless, the two-year residence requirement is not eliminated, but simply postponed while the other nonimmigrant status is valid. It is also noteworthy that a J-1 Physician will not be able to apply for permanent residence until the two-year residence requirement is met or a waiver is approved.

  1. Waiver Options:

Nonetheless, J-1 Physicians may waive their two-year residence requirement. There are numerous waiver options available for J-1 Physicians including:

  • obtaining a “no objection” letter;
  • persecution waiver;
  • exceptional hardship waiver; and
  • waivers issued by an Interested Government Agency (e.g. Conrad 30 Waiver).
  1. “No-Objection” Waiver

A “no-objection” waiver is available for those physicians that came to the US to observe, consult, teach, or conduct research. Under this type of waiver, the physician must obtain “release” from the home country organization that sponsored the training or work in the US. The guidelines for a “release” may differ for different countries and, therefore, it is important to know what the home country requires.

  1. Fear of Persecution Waiver

A J-1 Physician may also seek a waiver for persecution. The J-1 Physician would have to demonstrate a fear of persecution in his/her home country on the basis of his/her race, religion, or political opinion. It should be noted that this standard is higher then the asylum standard.

  1. Exceptional Hardship Waiver

A physician could also seek a waiver for exceptional hardship. The J-1 Physician would have to prove hardship to a USC or LPR spouse or child. If this waiver is approved, then the J-1 physician may file for permanent residence immediately if there is a basis for doing so.

  1. Interested Government Agency Waiver Options

  1. Conrad 30 Waiver

Waivers may also be issued by an Interested Government Agency (“IGA”).  The State Health Department may act as an IGA and issue 30 waivers per fiscal year to J-1 Physicians. This is known as the Conrad 30 Waiver.

Under the Conrad 30 Waiver, guidelines vary from state to state. However, there are general guidelines that typically apply:

  • The International Medical Graduate (“IMG”) must hold a full-time offer of employment (40 hours a week) in a federally designated primary care health professional shortage area (“HPSA”) (or mental health HPSA in the case of a psychiatrist) or medically undeserved area/population (“MUA/MUP”).
  • The IMG must agree to serve for a period of no less than three years.
  • States have the flexibility to allow up to ten of their 20 state J-1 waiver recipients to work in an area not designated as an HPSA or MUA/MUP, provided that the sponsoring facility serves individuals residing in underserved areas (the so-called “flex slots”).
  • The program applies to primary care physicians as well as specialists. In order to receive a waiver for a specialist, a sponsoring agency must determine that the service area has a shortage of physicians practicing that particular specialty.
  • There must be a written contract between the employer and the IMG.
  • The IMG must agree to begin practice within 90 days of approval of the waiver by USCIS.
  • The IMG must sign a statement that he or she has not applied for another Conrad State 30 waiver in another state.
  • If the IMG’s home country funded his or her medical education, the IMG must submit a “no-objection” letter from the home country.
  • The practice site must demonstrate evidence of unsuccessful efforts to recruit a physician who is a US worker for the vacancy.[2]

Under the Conrad 30 Waiver, the State Health Agency will make a recommendation for a J-1 home residence waiver based on the guidelines stated above. The recommendation is then forwarded to the DOS and, if approved by DOS, the recommendation is forwarded to USCIS for its final approval. When USCIS approves the waiver, the physician must seek H-1B status so he/she can start to work in the underserved area pursuant to the three year employment contract. Physicians that are seeking H-1B status under the Conrad 30 Waiver are not subject to the H-1B annual cap.

There are five steps to prepare a Conrad application. First, the physician must obtain a case number from DOS’s Waiver review.[3] If the physician already has a case number from a previously filed waiver, the same case number may be used, but the physician must submit a new processing fee.

Second, the counsel should examine Conrad requirements for the particular state and contact the program administrator to confirm any requirements. Third, it needs to be confirmed that the sponsoring facility is located in the HPSA or MUA/MUP. The information is available in the Federal Register, but the information may not be current. Therefore, the counsel should obtain the number of the census tract where the facility is located and enter it on the US Census Bureau’s American Fact Finder Website. This evidence must then be submitted with the supporting documents.

Fourth, the counsel should prepare and file the waiver application. The support letter for the Conrad 30 waiver should contain the following elements:

  1. Confirmation of HPSA or MUA/MUP designation, explanation of the nature of the shortage area, and information about the facility.
  2. Explanation of the medical services the IMG will provide to the underserved population and confirmation of the IMG’s professional qualifications.
  3. Evidence of recruitment and retention efforts.
  4. Explanation of the effect of a waiver denial.
  5. Confirmation of the existence of an employment contract between the IMG and the practice site.

Finally, counsel should submit an H-1B petition.

  1. The U.S. Department of Health & Human Services Waiver

The US Department of Health & Human Services (“HHS”) may also act as an IGA for waiver purposes. Under HHS’s Waiver Program for Clinicians, the IMG must agree to work as primary care physician or general psychiatrist.[4] The IMG must hold a contract with a sponsoring employer, obligating him to work in the primary care or mental health facility for a three-year period, at least 40 hours a week.

Unlike the Conrad 30 waiver, under the HHS waiver the facility may only be located in an HPSA location, not MUA or MPU. However, the application process is similar. The applicant must obtain a case number online, proof that IMG will work a minimum of three years, contract to work 40 hours a week at a HPSA facility, and the HPSA facility must establish that it actively recruited non-foreign physicians, both regionally and nationally.

Under HHS Waiver Program for Researchers, applicants must demonstrate the following:

  • Their research program is of high priority or significance in an area of interest to HHS;
  • They are an essential part of the program without whom the program, or major part of the program, would otherwise discontinue;
  • They can make original and significant contributions to the program and posses outstanding qualifications, training and experience beyond the usually expected accomplishments at the graduate, postgraduate, and residence levels.

Unlike other waivers, HHS Waiver Program for Researchers does not obligate the exchange visitor to be employed for a specific period of time (e.g. three years).

  1. The Appalachian Regional Commission Waiver

The Appalachian Regional Commission (“ARC”) is another IGA for the purposes of J-1 Waiver. Similarly, the applicant must work in an ARC county for three years and 40 hours a week (travel or on call-time does not count toward the 40 hours). The facility must be an HPSA, not MUA or MUP.

The employment contract between the physician and the sponsoring employer may not contain a non-compete clause or a restrictive covenant. The employment agreement must contain the ARC liquidated damages clause. Prior to employment, the physician must be licensed by the state where he/she will practice and completed residence in one of the following specialties: family practice, general pediatrics, obstetrics, general internal medicine or psychiatry.

  1. The Department of Defense Waiver

The Department of Defense (“DoD”) will consider waiver request for individuals that work in support of DoD contracts with civilian or defense industry. These waivers must be supported by the Senior Executive Service (“SES”) or flag-rank-level official (e.g. General or Admiral) before they will be considered by DoD.

  1. The Department of State Waiver

DOS will not act as IGA on behalf of J-1, but will act as an IGA on behalf of the J-2 in cases of divorce or where the J-2 child has turned 21.

  1. The Department of Veterans Affairs Waiver

The Department of Veterans Affairs acts as another IGA for waiver purposes. The Veterans Affairs Medical Center (“VAMC”) must use waivers “as last resort” in cases of “overwhelming need” and must show that its inability to recruit the J-1 Physician would “necessitate discontinuance of a program or a major phase of one.” In order to obtain a waiver there must an actual vacancy at a VAMC and the VAMC must conduct recruitment of non-foreign physicians.

The waiver request must be submitted to the Veterans Affairs Integrated Service Network (“VISN”) and VISN forwards the waiver request to the VA Health Revenue Center. The VA Health Revenue Center forwards the completed request to the Office of Patient Service  at VACO in Washington, DC. The Office of Patient Care forwards its approval of the waiver request to the Waiver Review Division of the DOS.

The recruitment of the physician must be undertaken as if he/she would be able to start work the next day. Therefore, the physician must have all licenses to practice medicine and board certifications. After verification of credentials, the VAMC completes the waiver request by adding a detailed letter by the Director, describing the position, assignment, whether the position is full time or part time, and the proposed start date. The Director should indicate any patient care problems, and how the loss of the J-1 Physician would result in discontinuance of a program or major phase of a program of interest to the VA.  The VAMC and physician must sign an agreement confirming that the VAMC has made a bona fide full time job offer and that the physician agrees to work for no less than three years at the VAMC. If the physician remains in the US beyond expiration of the DS-2019 plus 30 days, the VA will not process the waiver.

  1. Changing Employers:

Physicians obligated to the three-year employment contract under the IGA waivers, may be able to change employers if they establish “extenuating circumstances.” In order for an IMG to change employers, the regulations require the new employer to file an H-1B petition for the IMG which may include the following items:

  • The approval notice of the original H-1B petition;
  • An explanation, with supporting evidence, that describes the extenuating circumstances or hardships that are the reason(s) why the IMG needs to change employers;
  • The employment contract with the new employer, showing that the IMG will practice medicine at the facility for the balance of the required three-year term; and
  • Evidence that the area of intended employment is in a designated shortage area. [5]

There is no requirement for the IMG to obtain approval from the DOS prior to changing employers. However, if the IGA is not notified and later learns that the IMG is no longer employed by the original petitioning employer, it may report the IMG’s departure to USCIS or DOS as potential violation.

  1. Other Non-Immigrant Visa Options:

An H-1B Temporary Worker visa is also available for fully credentialed IMG physicians or physicians of national renown. To work as an academic physician engaged in teaching and research, an IMG would need to possess:

  • (1) an MD degree or unrestricted license in the foreign state; and
  • (2) the license or “appropriate authorization” as required for the job in the state of intended employment.
  • In order to work as a physician in the US engaged in the clinical practice of medicine, an IMG would need to meet two additional requirements:
  • (3) demonstrate that he or she has passed the Federation Licensing Examination (FLEX) or its equivalent as determined by the US Department of Health and Human Services (HHS); and
  • (4) prove competence in oral and written English by demonstrating either passage of the Educational Commission for Foreign Medical Graduates (ECFMG) English-language examination, or possession of a degree from a medical school accredited by the US Secretary of Education.

IMGs who are Australian nationals may seek E-3 classification as an alternative to H-1B classification. The annual cap for such visas is 10,500. The requirements for E-3 classification with respect to the education of the physician and the job duties to be performed mirror the H-1B requirements. The term of admission for E-3 physician is two years and there is no specified number of extensions the E-3 physician may be granted.

In rare circumstances, J-1 physicians may qualify for O-1, Alien of Extraordinary Ability. While J-1 trainee cannot change into O-1 status in the US, because of the residence requirement, he or she is eligible to consular process for an O-1 visa. O-1 may also be a choice for physicians that are subject to the H1-B cap or lack credentials that are required for H-1B clinical physician.

O-1 physicians must achieve a level of “extraordinary ability . . . by sustained national or international acclaim.” A successful application must clearly state persuasive facts that easily educate immigration officers about the significance of the alien’s accomplishments in the field. The strongest evidence usually comes in the form of support letters from other experts in the field. These letters should explain the physician’s research, his publications and presentations, awards, and other specific indicia that he has met the criteria set forth in the regulations.

  1. National Interest Waiver:

Physicians may also try to obtain a Green Card by applying for a National Interest Waiver (“NIW”).  A NIW waiver may be granted to any alien physician who agrees to work full time as a clinical physician for an aggregate of five years in an area designated by the Department of Health and HHS as medically underserved, or at a VA facility. The physician may include time spent toward completion of a three-year J-1 waiver commitment as part of the five year period of service required for the physician NIW petition, but not the time spent in J-1 status itself. Time spent in other visa classifications (e.g. O-1, H-1B) will, however, count toward the five-year period.  Most importantly, the physician’s employment must be in the public interest.

USCIS no longer requires a physician to complete the five-year medical service requirement within 6 years, but will require a submission of evidence to show periodic progress toward completion of the five-year period of medical service. An individual examiner has discretion to deny an I-485 or revoke an I-140 even before the six-year mark if the examiner subjectively determines that the physician is not making “meaningful progress” toward completion of the five-year requirement. Unlike the PERM-based method, a physician can be self-employed or hold a position as partner and still obtain benefits under the NIW provisions.

For details and assistance in filing for visa status, contact us at 617-536-0584, info@immsolutions.com.


[1] Grace period refers to the time appearing on the alien’s DS-2019 form plus an additional 30-day period. During the additional 30-day period the alien has a “non-employment authorized status.”

[2] Margaret A. Catillas, Immigration Options for Physicians 46 (3rd. Ed., 2009)

[3] The physician must apply online and fill out a form DS-3035. The form must then be printed out and mailed together with a processing fee of $215.

[4] HHS Waiver Program does not apply to specialists, but the Conrad 30 Waiver does.

[5] Margaret A. Catillas, Immigration Options for Physicians 193 (3rd. Ed., 2009)

 

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