What Every Health Care Facility Needs to Know When Hiring a Foreign Medical Graduate Kaushik Ranchod Attorney at Law

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2 Foreign Medical Graduate HIRING MADE EASY What Every Health Care Facility Needs to Know When Hiring a Foreign Medical Graduate Kaushik Ranchod Attorney at Law

3 Foreign Medical Graduate HIRING MADE EASY Copyright 2014 Kaushik Ranchod All rights reserved. Manufactured in the United States of America. No parts of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems without written permission from the publisher. The only exception is for a reviewer. A reviewer may quote brief passages for a review. Published by: Ranchod Law Group Sacramento and San Francisco 8880 Cal Center Drive, Suite Montgomery St. Suite 800A Sacramento, CA San Francisco, CA Ph: (916) Ph: Fax: Fax: This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel with an experienced Immigration Attorney regarding case specific situations.

4 INTRODUCTION Being proactive in a growing physician shortage How do you address your physician shortage needs? My clients, hospitals, medical facilities, and clinics, range in size and in practice areas, but they all have one major thing in common, all of my clients come to me because they are suffering from a shortage of physicians. If you are like my other medical facility clients you are extremely busy managing your facility, patient needs, HR staffing needs and policies, and a host of other issues that are involved in practicing medicine and running a medical facility. Your facility depends on having sufficient competent physicians on staff. Unfortunately, if your medical facility is feeling a shortage of physicians now, it is about to get a lot worse. As reported by Forbes on September 11, 2013, an estimated 7 million previously uninsured Americans will have coverage January 1, 2014, thanks to the Patient Protection and Affordable Care Act (that number will jump to 20 million by 2016). When combined with the millions of Baby Boomers that will be reaching Medicare age, the nation is facing a Perfect Storm of physician shortages. Forbes further reports that an estimated 75, ,000 new physicians will be needed over the next decade. I created this book to address the solution of hiring foreign medical graduates to address the physician shortage your facility is, or could be facing. Why download and read this book? The use of foreign medical graduates can alleviate the physician shortage you are experiencing in your facility. Foreign medical graduates can also be employed to grow your medical facility. This book is most helpful for hospital executives, medical facility administrators, human resource personnel, or any health care management professional who is considering the employment of foreign physicians. The title says it all, Hiring Made Easy. With this book you can easily access all the basic information needed to evaluate your options and steps needed to add foreign physicians to your facility. The purpose of this book is to explain both the procedure and requirements of common options. Page 1

5 I am an immigration attorney with well over a decade of immigration law experience utilizing my legal knowledge to help medical facilities obtain and keep the foreign physicians the facilities so desperately want and need. This results in a win-win for both the facility and the physician. By reading this book, you will be able to access valuable information about hiring foreign medical graduates to staff your medical facility within minutes. Why wait? Begin addressing your physician shortages now. Quick Start Guide As a preliminary matter, please note that throughout the book we use the term Medical Facility as an all-encompassing term which includes hospitals, clinics, and other health care providers. We refer to the foreign doctor as a FMG Physician (Foreign Medical Graduate Physician.) To help you locate the information you need quickly please use the following guide, for a more detailed layout please see the table of contents below. Is your medical facility in an area designated by the Department of Health and Human Services (HHS) as a Medically Underserved Area ( MUA ) or in a Health Professional Shortage Area (HPSA)? If so, please see Chapter 3, J-1 Conrad 30 Waiver. For two common visa types for FMG Physicians, see Chapter 4: H-1B, and Chapter 5: O-1. Do you have a foreign doctor you wish to keep permanently? See Chapter 6, Lawful Permanent Residence. Page 2

6 TABLE OF CONTENTS Contents INTRODUCTION Being proactive in a growing physician shortage... 1 Quick Start Guide... 2 TABLE OF CONTENTS... 3 CHAPTER 1: J-1 Waiver Basics... 5 Why do FMG Physicians need a J-1 Visa Waiver?... 5 Common Questions about Time and Money... 7 CHAPTER 2: J-1 Waiver Procedure... 9 CHAPTER 3: Different Types of J-1 Waivers for FMG Physicians J-1 Conrad 30 Waiver Requirements for a J-1 Conrad 30 Waiver J-1 Hardship Waiver Requirements for a J-1 Hardship Waiver Advantages and Disadvantages of the J-1 Hardship Waiver J-1 Persecution Waiver CHAPTER 4: H-1B What is an H-1B Visa? Standard H-1B visa Requirements Apply to FMG Physicians What is the H-1B Cap? J-1 visa v H-1B visa for FMG Physicians who will participate in a U.S. Residency Program Benefits of the H-1B Visa: Disadvantages of the H-1B Visa: What are the responsibilities of the medical facility while filing an H-1B? H-1B Change of Employer (H-1B Transfer) Why should FMG Physicians consider applying for an H-1B visa after obtaining a J-1 waiver? CHAPTER 5: O-1 Visa What are the requirements for an O-1 visa? How long does it take to get an O-1? CHAPTER 6: Lawful Permanent Residency (Green Card) PERM Labor Certification for FMG Physicians Medical Facility s Responsibilities Page 3

7 PERM Recruitment Requirements When should a FMG Physician apply for a PERM? Lawful Permanent Residence through a National Interest Waiver What are the benefits to the FMG Physician when they apply for a National Interest Waiver? When should a FMG Physician apply for a National Interest Waiver? Why should a FMG Physician pursue PERM labor certification over a National Interest Waiver? Does a FMG Physician have any other options other than a PERM or a National Interest Waiver? FAQ Regarding Lawful Permanent Residency If I obtained a J-1 waiver can I immediately apply for permanent residency? May a FMG Physician change employers once he/she becomes a Lawful Permanent Resident? What is EAD or a Work Permit? If the FMG Physician has received his EAD, would s/he be able to work anywhere? Can a physician who is a Lawful Permanent Resident apply for U.S. Citizenship? Will this change affect his/her employer? CHAPTER 7: Summary APPENDIX A: Table of Commonly Used Acronyms ABOUT THE AUTHOR Page 4

8 CHAPTER 1: J-1 Waiver Basics Why do FMG Physicians need a J-1 Visa Waiver? Many FMG Physicians participate in U.S. residency programs as J-1 exchange visitors (under a J-1 visa) sponsored by the Educational Commission for FMG Physicians (ECFMG). FMG Physicians who enter the U.S. in J-1 status (clinical training category) are subject to the two year home country residency requirement under section 212(e) of the Immigration and Nationality Act (INA), and thus are required to return to their home country upon the completion of the J-1 program for two years. As a J1 visa holder the FMG Physician is subject to this requirement for one or more of the following reasons: The FMG Physician participated in a program that was funded in whole or part by a U.S. Government agency, the FMG Physician s home country s government, or an international organization that received funding from the U.S. or the FMG Physician s home country s government; The FMG Physician participated in a program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of the FMG Physician s home country and appears on the Exchange Visitor Skills List for that home country; and/or The FMG Physician participated in an exchange program to receive graduate medical education or training. As a basic rule, if the FMG Physician entered to participate in a residency program, the FMG Physician is subject to the two year home country residency requirement and only the last bullet applies. FMG Physicians who received government funding but did not participate in residency could also be subject to the two year home country residency requirement. The FMG Physician is usually made aware of the requirement to return to his or her home country when s/he agrees to participate in the program or at his or her visa interview. However, if the FMG Physician is unsure whether the requirement to return to his or her home country applies, s/he Page 5

9 should contact an immigration attorney for advice. If necessary, the attorney can obtain an official opinion on the FMG Physician s behalf from the Department of State to determine whether s/he is required to return to his or her home country. If at the end of the program, the FMG Physician wishes to remain in the U.S., without returning to his or her home country for two years, s/he would be required to obtain a waiver of the home residency requirement before applying for a change of status or lawful permanent residency (a Green Card). Otherwise, the FMG Physician will be required to return to his or her home country for two years before s/he can apply for a nonimmigrant or immigrant visa to return to the U.S. and work. There are four bases set forth in U.S. immigration law to waive the requirement of the FMG Physician to return to his or her home country: 1. Waiver may be requested by an interested U.S. federal government agency; 2. Participation in the Conrad State 30 Program; 3. Hardship waiver; or 4. Waiver may be requested based on FMG Physician s fear of persecution based on race, religion, or political opinion if obligated to return to home country. Please see Chapter 3: Different Types of J-1 Waivers for FMG Physicians. In addition to needing a J-1 waiver, a FMG Physician who completed residency in the U.S. on a J-1 visa also needs an H-1B visa or another employment related visa to work lawfully in the U.S. after approval of the J-1 waiver. The J-1 waiver merely waives the requirement to return to the home country for two years, the J-1 waiver does not give the FMG Physician status to live or work in the U.S. Please see Chapter 4 for discussion of the H-1B visa and Chapter 5 for discussion of the O-1 visa. If a FMG Physician is completing residency in the U.S. in H-1B status instead of J-1 status, s/he would not need a waiver to work for different medical facility. Nevertheless, the FMG Physician would need to request a change of employer. Please see Chapter 4. Again, it is more common for FMG Physicians to pursue residency on a J-1 and if the FMG Physician is completing or completed residency in J-1 status, the FMG Physician needs to first obtain a J-1 waiver before beginning other employment. Page 6

10 The importance of shortage areas in relationship to the J-1-Waiver Rural areas, inner cities, Native American reservations, and other designated shortage areas often experience difficulties in the recruitment and retention of physicians. In many cases, the ability of these medical facilities to remain open and provide the necessary healthcare services depends on having an adequate staff of physicians. Due to these difficulties, many of these medical facilities turn to the recruitment of FMG Physicians with J-1 visas to fill their physician needs. Health care facilities in these designated shortage areas may sponsor candidates for a J-1 waiver to allow the FMG Physician to work in lawful H-1B status. H-1B visas are covered in detail in Chapter 4. The most popular way a FMG Physician on a J-1 visa can obtain a waiver to allow them to change their status to H-1B is to find a J-1 Waiver job in a designated underserved or shortage area. These jobs have specific requirements and the filing procedure and requirements may vary depending on the specific area. Furthermore, although the H-1B visa does not count toward the annual cap, there are certain restrictions that must be followed. An immigration attorney can advise you as to the filing procedure and requirements as well as the restrictions. Common Questions about Time and Money What are the costs for the medical facility for filing a J-1 visa waiver? The state fee for a J-1 waiver can range from free to $2,500 depending on the state. Additionally, the Department of State s J-1 waiver application fee is $215. These fees can be paid by either the medical facility or the FMG Physician. These aforementioned fees are only for the J-1 waiver. There are additional fees after approval of the waiver depending on the option pursued by the medical facility and the FMG Physician. (See Chapter 4: H-1B, Chapter 5: O-1 Visa, and Chapter 6: Lawful Permanent Residence). How long does it take to obtain a J-1 waiver? Processing times can vary month to month, and will usually depend on the case load of the different agencies involved. Currently, it can take between four to eight months to complete adjudication of a J-1 waiver. Page 7

11 How far in advance do J-1 FMG Physicians need to apply for a J-1 waiver? It is advisable that a resident in J-1 status apply at least four to eight months in advance to ensure that the FMG Physician remains in lawful status while their J-1 waiver application is pending. Page 8

12 CHAPTER 2: J-1 Waiver Procedure Your immigration attorney will guide your medical facility and the FMG Physician of your choice through the J-1 Waiver Procedure. Generally, the procedure is as follows: J-1 Waiver Procedure Step 1 All J-1 visa waiver applicants must commence the process by first filing an application (Form DS-3035) with the Department of State (DOS), which will immediately register the application in its system and issue the FMG Physician a barcode. Two self-addressed stamped envelopes and a cashier s check or money order with payment to the U.S. Department of State must be submitted. If the proper form is not submitted to the DOS, the waiver application will be rejected. Note that without regard to whether the application is ultimately approved, the processing fee is nonrefundable. Step 2 Gather and submit all supporting documents to the Waiver Review Division. All documents required of third parties on behalf of the FMG Physician must also be sent directly to the Waiver Review Division by the third parties. These documents may include Conrad request letters, Interested Federal Government agency requests, or exceptional hardship determinations by the U.S. Citizenship and Immigration Services (USCIS) depending on the specific basis. Please visit the following J-1 Visa Waiver pages to learn more about the specific processes for the third party government agencies: Conrad 30 Waiver Interested Government Agency Waiver Exceptional Hardship Waiver Persecution Waiver Page 9

13 Step 3 When the Waiver Review Division has made a decision regarding the J-1 waiver, it will forward the recommendation to the USCIS. A copy of the determination will also be sent to the address listed on the Form DS Step 4 The USCIS makes a final determination on the waiver request. The USCIS will notify the FMG Physician in writing of its decision. Page 10

14 CHAPTER 3: Different Types of J-1 Waivers for FMG Physicians As covered in Chapter 1, most FMG Physicians who enter the U.S. on a J-1 visa to participate in a residency program are subject to the two year home residency requirement under the Immigration and Nationality Act (INA) Section 212(e). This means that at the end of the J-1 program, the FMG Physician cannot change to a different nonimmigrant status or apply for lawful permanent residence (a Green Card) without returning to his or her home country for two years. However, a FMG Physician may request a waiver of this requirement on several different grounds. J-1 Conrad 30 Waiver The Conrad 30 waiver (or State 30 waiver) is a State Department of Health waiver commonly utilized by FMG Physicians. In 1994, Senator Kent Conrad created the Conrad 20 to address the shortage of physicians in medically underserved areas. In 2003, this legislation was reauthorized, and increased the number of state sponsored waivers to 30 per year. Conrad 30 waivers usually target primary care physicians who have completed a U.S. residency training program in one of the following specialties: Family Medicine, General Obstetrics, General Pediatrics, General Internal Medicine, or General Psychiatry. On December 4, 2004, Congress enacted legislation that affords states the right to substitute five of their 30 slots with licensed and contracted specialty physicians. Each state has specific requirements regarding whether the FMG Physician s specialty will qualify for their J-1 Conrad 30 waiver program. Requirements for a J-1 Conrad 30 Waiver The medical facility must offer the FMG Physician a salary that is comparable to other physicians with the same level of experience and training in the medical facility s geographical area. The medical facility must submit a letter on the FMG Physician s behalf. Page 11

15 The FMG Physician must work for three years and 40 hours per week providing primary care services. The FMG Physician must work in a Medically Underserved Area ( MUA ) or in a Health Professional Shortage Area designated by the Department of Health and Human Services (HHS). The FMG Physician must submit Form DS The State health department s designated official (designated by the state governor) must submit a letter which provides that it is in the public interest that the FMG Physician remain in the U.S. Each state also has unique Conrad 30 requirements which may include one or more of the following: The medical facility may need to demonstrate its recruitment efforts to show that it was not possible to obtain a legal permanent resident or U.S. citizen physician. The FMG Physician must be employed at a medical facility that accepts Medicaid/Medicare eligible patients. The FMG Physician must meet licensure requirements of the state. Applications must include the I-94 for the physician and copies of all IAP-66/DS forms. These above requirements may or may not apply depending on the state in which the medical facility is located. Your immigration attorney can advise you as to the applicable requirements in your specific case. There are certain caveats of which the FMG Physician must be aware. If the FMG Physician does not fulfill the 3-year commitment under the terms as described in the Conrad 30 waiver, the FMG Physician will continue to be subject to the twoyear home residency requirement. Page 12

16 J-1 waiver regulations are complex, and complying with the law is paramount to obtaining 1 of 30 allotted J-1 waiver recommendations. Timing is also very important when applying for a J-1 Conrad 30 Waiver, as they are granted on a first come first serve basis. If the FMG Physician submits a well-prepared application as soon as the filing date becomes available, the FMG Physician will have a higher likelihood of obtaining the J-1 Conrad 30 Waiver. Therefore, it is imperative that the medical facility and/or the FMG Physician contact an immigration attorney with plenty of time in order to better ensure success. J-1 Hardship Waiver J-1 visa holders who can demonstrate that their departure for two years would cause exceptional hardship to their United States citizen or lawful permanent resident spouse or child ( qualifying relatives ) may obtain a waiver of the two-year foreign residence requirement. Requirements for a J-1 Hardship Waiver What is exceptional hardship? Exceptional hardship can take many forms depending on your particular circumstances. Typical hardships include medical hardship, psychological hardship, political and social conditions in the home country, and economic and career disruption which would impact the qualifying relative(s). Length of marriage, number of children, original nationality of the qualifying relative(s), and any past separation between the FMG Physician and the qualifying relative(s) are also taken into consideration. Again, the hardship must be to the FMG Physician s spouse and/or child (not parent or other family) and the spouse or child suffering hardship must have status as a lawful permanent resident (a Green Card) or a U.S. Citizen. Also, mere separation from family and the attendant sadness that this involves is not sufficient to establish exceptional hardship. Let s look at some examples: While on his J-1 visa, Ali met Rebecca, a U.S. citizen, and the couple marries. Rebecca has a history of crippling depression but with Ali, Rebecca is happy and stable, and has not had any relapses. Rebecca could not function when she was afflicted with her depression, but since coupling with Ali she is a fully functioning member of society. Rebecca cannot accompany Ali back to his home country for Page 13

17 his required two years because she is the only person willing and able to care for her aging parents. The prospect of Ali having to leave, even if just for two years, is becoming a source of increasing anxiety for Rebecca and she is having suicidal thoughts. The thought of leaving her parents behind raises similar feelings. Given these particular circumstances, it would be wise for Ali to apply for a hardship waiver because his departure would cause exceptional hardship to his wife, Rebecca, a U.S. citizen. As another example, take the case of Noah and Cynthia. Noah entered the U.S. on a J-1 and brought his wife Cynthia on a J-2. While in the U.S., Cynthia gave birth to the couple s first child, Alexander. Alexander suffers from attention deficit/hyperactivity disorder (ADHD). Alexander has a hard time focusing and he is really hyper but his school is accommodating to his needs and after school he goes to tutoring so that he won t fall behind. He also meets with a social worker and a child psychiatrist to make sure he is a staying on track. Thankfully, with his current regimen, Alexander is thriving. Unfortunately, in Noah and Cynthia s home country, ADHD is not recognized. The schools would treat him like a misbehaving child instead of a child with special needs. Alexander would also lack access to professionals who are familiar with and understand ADHD. Noah and Cynthia are justifiably concerned about the devastating consequences of foregoing treatment for Alexander. Given these particular circumstances, it would be advisable for Noah and Cynthia to seek a hardship waiver because even two years abroad would cause exceptional hardship to Alexander, a U.S. citizen. At Ranchod Law Group we have been successful in obtaining approval for J-1 hardship waivers. Most recently we successfully obtained a J-1 hardship waiver for a Jordanian individual, a FMG Physician, and his wife, in J-2 status. While in the U.S. the couple had a child and that child had been recently diagnosed with a disorder for which, with research, we found to be difficult to treat in Jordan. We researched and obtained extensive documentation to show that treatment was not available as well as asking for and receiving important documentation and opinions from nationally known experts in the field of this particular disorder in order to prepare the most compelling and complete case possible. In order for the FMG Physician to prove his or her case for exceptional hardship s/he can submit absolutely any type of papers to help prove the case. For example, Page 14

18 the FMG Physician may want to submit letters from friends and family; statements from doctors, mental health professionals, teachers, and case workers; medical records; photographs; and/or financial statements, as applicable. The FMG Physician will also be required to submit a statement detailing the exceptional hardship that would ensue upon departure from the U.S. An immigration attorney will help highlight the strengths of the case in FMG Physician s statement. Also, the immigration attorney will write a legal argument on the FMG Physician s behalf, called a brief, explaining exactly how the circumstances meet the requirements as specified by the law. Finally, the immigration attorney will include printed research regarding the medical conditions present in the case or supporting the other hardships, and research regarding the conditions in the FMG Physician s home country. Because the hardship waiver is not easy to obtain and is highly fact based and subject to discretionary considerations by adjudicating officers, waivers should not be submitted without careful preparation. An experienced immigration attorney can help you determine whether your waiver has a reasonable possibility of success. Advantages and Disadvantages of the J-1 Hardship Waiver The benefits of the hardship waiver are that, if approved, the FMG Physician can immediately apply for lawful permanent residence (a Green Card) or change of status rather than spending three (or five) years in H-1B status as may be required under the other wavier processes. A physician would also not be limited to employment in underserved or shortage areas, but can take a position anywhere. The disadvantages are that the outcome of the application, and the time to process it, is difficult to predict. The hardship to the qualifying relatives in the event they were to go with the FMG Physician to the home country, or in the event they were to remain in the United States, should be considered equally. J-1 Persecution Waiver If the FMG Physician fears being persecuted based on account of his or her race, religion, or political opinion if s/he were to return to the home country, the FMG Physician may apply for a persecution waiver. This type of waiver is similar but not the same as asylum (asylum can also be requested on the basis of nationality or Page 15

19 membership in a particular social group). Let s take a look at some scenarios covering all three bases for a J waiver based on persecution: Jane is of a specific ethnic background. While in the U.S. on her J visa, a civil war broke out in her home country and Jane s race is now being persecuted. Jane can seek a waiver based on fear of persecution on account of her race. Mohammed is from a predominantly Islamic country. While in the U.S. on his J visa, Mohammed converts to Christianity. He tries to spread the word of Jesus to his family back home but his family becomes very upset. They threaten to hunt him down and kill him as a disgrace to their family if he returns to his home country. Moreover, the police will not intervene for crimes against Christians. There is widespread discrimination, and moreover, harm to Christians in Mohammed s home country. Mohammed, however, refuses to hide his beliefs because he has faith in Jesus. In this scenario, Mohammed should seek a persecution waiver so that he can remain safely in the U.S. A final example would be if Mohammed began to embrace a political opinion that was in opposite to the opinion in his home country and if Mohammed would be persecuted based on his opinion. In each of these three scenarios, we would write a legal argument detailing the situation and how the situation meets the requirements of the law. We would also include research and news articles from the home country. We will help the FMG physician write a personal statement detailing his or her fear. Finally, we would want to include papers proving the truth of the situation. For example, Jane would need to include proof of her specific ethnic background. We might need to obtain an expert opinion to document this. In the second scenario, Mohammed would want to obtain a letter from his Church and proof of involvement in his religious community. Statements from fellow followers would also be beneficial. In the last scenario, proof that Mohammed is advocating his particular political opinion would also be beneficial. This is just an example of how these cases can be supported. Page 16

20 CHAPTER 4: H-1B What is an H-1B Visa? The H-1B visa is a non-immigrant visa that allows FMG Physicians, among other foreign nationals, to work in the U.S. temporarily. FMG Physicians may utilize the H-1B visa category if they are providing direct patient care or even performing research or teaching. A FMG Physician may also obtain an H-1B visa by participating in a residency program. In practice, most FMG Physicians enter the U.S. on a J-1 visa for their graduate medical training (residency). After completing their training, the FMG Physician must return home for two years pursuant to Section 212(e) of the Immigration and Nationality Act. However, if they obtain a waiver of the two year home country residency requirement, they may apply for an H-1B visa. Many J-1 waivers, such as the Conrad 30 waiver, ARC waiver, DRA waiver, and VA waiver, require the FMG Physician to work for three years at the designated facility under the terms specified by the interested agency or by law. Consequently, the FMG Physician must apply for an H-1B visa to work lawfully for the three year period. It is important to reiterate that after completion of a residency program and approval of the J-1 waiver, the resident needs an H-1B visa or another employment related visa to work lawfully in the U.S. At the end of the three year period, the FMG Physician may apply for lawful permanent residency (a Green Card). It is important to note that if the FMG Physician violates the terms of their employment as specified by the waiver during the three year period, the FMG Physician will become subject to the two-year home country residency requirement again. Standard H-1B visa Requirements Apply to FMG Physicians The FMG Physician, whether in residency or in practice, must meet the following standard H-1B requirements: The position must be a specialty occupation. By definition FMG Physicians fall within the regulatory definition of a specialty occupation. The medical facility must pay the FMG Physician the prevailing wage as set forth in the Department of Labor s (DOL) regulations. Page 17

21 The medical facility must file an H-1B petition on behalf of the FMG Physician, and the FMG Physician must work for the petitioning medical facility pursuant to the terms of the approved H-1B. The FMG Physician may work part-time for more than one medical facility if each medical facility petitions for the FMG Physician. Of course, it should be noted that if the FMG Physician obtained a J-1 visa waiver in conjunction with the H-1B petition, part-time employment is likely not an option. The medical facility must file a labor condition application (LCA) with the DOL. The LCA is supposed to ensure that the admission of the FMG Physician to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. The immigration attorney will assist the medical facility in complying with the DOL s regulatory requirements for filing the LCA. There are also credentialing and licensing requirements for the FMG Physicians. These requirements are applicable regardless of whether the FMG is providing patient care or still in residency. Accordingly, these requirements do not apply to FMG Physicians who are primarily teaching or conducting research at a public or nonprofit private educational or research institution. The credentialing and licensing requirements also do not apply to FMG Physicians who have graduated from U.S. medical schools. Degree Requirement: The FMG physician must demonstrate that s/he has a degree from an accredited medical school in the U.S. or the foreign degree equivalent. English Competency Requirement: The FMG Physician must demonstrate competency in a written and oral English examination administered by the Educational Commission for FMG Physicians (ECFMG). Canadians are not subject to the English proficiency requirement. Examination Requirements: The FMG Physician must have passed the United States Medical Licensing Examination (USMLE) Parts 1, 2 and 3. The Federation Licensing Examination (FLEX) and the National Board of Medical Examiners (NBME) certifying examinations have been replaced with the USMLE. As such, the USCIS will not accept a combination of examinations for purposes of H-1B eligibility. Licensing Requirement: The FMG Physician must have an unrestricted state license which allows them to practice medicine in the state. Every state has unique requirements regarding post-graduate medical training, educational requirements, and licensing requirements. Even FMG Physicians who have graduated from a U.S. Page 18

22 medical school or who are internationally renowned in the field must demonstrate that they have the appropriate state license. However, these physicians do not need to demonstrate their competency in English or have passed the USMLE. ECFMG: Physicians entering the U.S. to participate in medical training programs must obtain ECFMG certification. The physician must pass four examinations to receive certification, USMLE Parts 1 and 2, Test of English as a Foreign Language (TOEFL) and Clinical Skills Assessment (CAS). An immigration attorney can discuss these requirements with the medical facility and the FMG Physician. What is the H-1B Cap? Only 65,000 H-1B visas are available each fiscal year (which begins on October 1 of each calendar year). USCIS begin accepting applications on April 1 st of each year. For the last several years, the H-1B cap for the following fiscal year was filled within six months of April 1 st, the first day. Notably, on April 1, 2007 and in 2013, the H-1B cap was met on the first day. Over 100,000 petitions were filed in 2007, forcing USCIS to randomly select petitions for adjudications. As a result, many of the petitions submitted were returned. This occurred again in Also note that the earliest that an H-1B petition can be submitted is six months before the start date of employment. Thankfully, if the FMG Physician works for a non-profit or public institution (or a VA facility), s/he is also not subject the 65,000 cap. J-1 visa v H-1B visa for FMG Physicians who will participate in a U.S. Residency Program FMG Physicians have the option of pursuing their Graduate Medical Training (residency) in J-1 status or H-1B status. There are advantages and disadvantages to both options. A FMG Physician should carefully consider these options, as they may greatly affect the FMG Physician s opportunities upon completion of residency. Page 19

23 Benefits of the H-1B Visa: FMG Physicians in H-1B status are not subject to the two year home residency requirement. As a result, when the FMG Physician completes the residency program, s/he will not require a waiver in order to remain in the U.S. If a FMG Physician enters on a J-1 visa, s/he will need to return to his or her home country for two years at the end of the residency program or obtain a J-1 waiver. If the FMG Physician completed his or her residency program as an H-1B worker, s/he may pursue lawful permanent residence immediately after the conclusion of the residency program. Again, a J-1 visa holder will need to obtain a waiver if s/he wishes to pursue lawful permanent residence immediately after the residency program. Moreover, FMG Physicians who obtain J-1 waivers based on a sponsorship from an Interested Government Agency Program or based on the J-1 Conrad 30 Waiver may only apply for permanent residency after fulfilling their three year commitment. Disadvantages of the H-1B Visa: Main Disadvantages to the Medical Facility: In order to petition for the H-1B the medical facility must first file a labor condition application (LCA) with the DOL. The LCA is supposed to ensure that the admission of the FMG Physician to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Medical Facilities are subject to attestations made in the LCA, which include the obligation to pay the prevailing wage, and maintenance of certain public access records. Many medical facilities prefer the J-1 option, as they may find the obligations (and the extremely high filing fees) imposed on the H-1B employer to be onerous. Main Disadvantages to the FMG Physician: An H-1B worker is only permitted to remain in the U.S. in H-1B status for a total of six years. H-1B status is granted in three year increments and at the end of the sixth year, the H-1B worker must return to his or her home country for at least one year before being allowed to return to the U.S. in H-1B status. Completion of certain residency programs will often cause some FMG Physicians to exceed the six year period allotted by the H-1B. In 2000, Congress enacted the Page 20

24 American Competitiveness in the 21st Century Act (AC21), which included provisions allowing flexibility of the six year cap. Generally, an individual is permitted to remain in the U.S. in one year increments beyond the sixth year if his or her labor certification has been pending for more than 365 days or if an I-140 petition on his or her behalf has been approved but the FMG Physician is not able to file an adjustment of status application solely because his or her priority date is not yet current or if an adjustment of status application is pending based on an approved I-140. In order for the FMG Physician to take advantage of these provisions, s/he must develop an early strategy for taking the necessary steps leading to lawful permanent residence. Even with some of the shorter residencies, after the conclusion of the residency program, the FMG Physician will likely have used most of their allotted H-1B time. The physician may have difficulty in finding an employer willing to begin immediately taking the steps for lawful permanent residence, and the FMG Physician may not be in the position to change to a different status. Additionally, if the FMG Physician wants to obtain employment via private practice on the remaining time on their H-1B, the FMG Physician would be subject to the annual H-1B cap as discussed previously. Lastly, the physician must also meet the licensing and credentialing requirements prior to filing for an H-1B visa while a J-1 visa FMG Physician is not subject to these requirements. What are the responsibilities of the medical facility while filing an H-1B? The medical facility must pay the FMG Physician the prevailing wage. The medical facility may follow the wage survey provided by the Department of Labor (DOL) or use a private survey that meets the requirements set forth by the DOL. The medical facility is also responsible for paying the costs associated with securing an H-1B visa, which includes the government filing fees. Also, should the medical facility terminate the H-1B worker s employment, the facility is responsible for paying the travel expenses for the worker to return to his or her home country. H-1B Change of Employer (H-1B Transfer) Once the FMG Physician is granted H-1B status, the FMG Physician can transfer to work for any other employer as long as the new position meets the requirements Page 21

25 of the H-1B classification. As a result, if the FMG Physician obtained an H-1B visa subject to the cap, the FMG Physician can change employers without regard to whether the cap has been filled. However, if the H-1B status is based on employment in a cap-exempt position and the change is to a non-exempt position, the change of employer petition will be subject to the cap. This will be significant if the cap has already been filled for the fiscal year. The requirements for a change of employer are as follows: The H-1B physician must be in H-1B status; admitted lawfully to the U.S.; maintained lawful status; worked in lawful status; and the new petition must be filed prior to the expiration of the FMG Physician s current H-1B status. The FMG Physician s new employer must be willing to sponsor the H-1B in order to obtain an H-1B change of employer. When is the 7th year extension available for an H-1B FMG Physician? An H-1B visa is granted for three years, but can be extended for three more years for a total of six years. The seventh year extension under the American Competitiveness in the 21st Century Act (AC21) affords the FMG Physician the right to extend his or her H-1B visa beyond the six-year limit, in one-year increments, in all of the following scenarios: if a labor certification has been pending for more than 365 days from the date filed: Like the Labor Certification Application (LCA) required for filing an H1B there is a permanent labor certification discussed in Chapter 6. If that labor certification has been pending for more than 365 days an individual is generally permitted to remain in the U.S. in one year increments beyond the sixth year of their H1B. if an I-140 petition on his or her behalf has been approved but the FMG Physician is not able to file an adjustment of status application solely because his or her priority date is not yet current: An I-140 petition is a petition for an immigrant worker. I-140 petitions are approved for a variety of employment categories, for example, so called priority workers are the first preference, and individuals of exceptional ability are in the second preference. Generally, the law allows a certain number of immigrants per each employment category and depending on the date the I-140 filed and how many people have been waiting with previously approved I-140s in that category, the FMG Physician may have to wait for their priority date to become current. If the FMG Physician is from China, India, Page 22

26 Mexico, or the Philippines, this may also affect the priority date. Priority dates are posted on the Department of State s website on a monthly basis. Once their priority date becomes current the FMG Physician can adjust status and get their Green Card, until then the seventh year extension of the H-1B might be a possibility. if an adjustment of status based on approved I-140 pending. Note that the seventh year rule applies even if the labor certification or I-140 petition was filed by another employer. Why should FMG Physicians consider applying for an H-1B visa after obtaining a J-1 waiver? Upon the approval of a J-1 waiver, a FMG Physician will require nonimmigrant classification that will permit him or her to work lawfully in the United States. Often, in coordinating the J-1 waiver application, a FMG Physician will also plan the filing of an H-1B petition. This option will allow the FMG Physician to work for an initial period of three years. In several J-1 waiver options (including the Conrad 30, DRA, ARC and VA waivers), the FMG Physician is obligated to work for the waiver sponsoring medical facility under very specific terms, one of which is three years of full time service. As the initial H-1B petition validity is for a three year period, the FMG Physician can use this initial validity period to fulfill his or her service obligation as defined by his or her approved J-1 waiver. At the end of the three year period, the FMG Physician may either seek new H-1B employment or continue with his or her employer and extend H-1B status for three more years. However, FMG Physicians who qualify may wish to consider an O-1 visa, discussed in Chapter 5, as this classification does not have a six year limitation. Can a FMG Physician who only wants to work part-time qualify for an H-1B visa? H-1B status may be granted for part-time work. The FMG Physician may work parttime for more than one medical facility if each medical facility petitions for the FMG Physician. Of course, it should be noted that if the FMG Physician obtained a J-1 Page 23

27 visa waiver in conjunction with the H-1B petition, part-time employment is likely not an option. Can a J-2 change status to an H-1B after spouse obtains a J-1 waiver? Spouses of J-1 visa holders live, and sometimes work, in the U.S. on J-2 visas. Individuals on both a J-1 and J-2 are typically required to return to their home country for a period of two years after the expiration of their visas unless a waiver of the two year home residency requirement is approved. If the J-2 otherwise qualifies for an H-1B, the J-2 visa holder can change status from a J-2 to an H-1B after the approval of a J-1 waiver. When the J-1 is granted a waiver of the two year home residency requirement, the J-1 waiver also applies to J-2 dependents. Previously, USCIS would approve a change of status from J-2 to H-1B as long as the J-1 waiver had been approved at the time of filing the H-1B. Recently, however, USCIS has denied many (but not all) requests for a change of status for J-2 to any status other than H-4 (dependent of an H-1B) until the J-1 has completed the three-year service requirement. Unfortunately, USCIS occasionally arbitrarily changes their policies thereby failing to abide by immigration law and regulations. USCIS is wrong in denying the requests for change of status because there is nothing in the law to support limiting a J-2 dependent to H-4 status or preventing a J-2 from acquiring status as an H-1B, O-1, or L-1 during the J-1 spouse s three year service period. Nonetheless, USCIS continues to deny some of these change of status requests. If USCIS denies the request to change from J-2 to H-1B, the J-2 dependent must consular process the H-1B. Alternatively, some attorneys have reported successfully filing a change of status from J-2 to H-4 status first, and then requesting a change of status from H-4 to H-1B without consular processing. However, USCIS decisions are inconsistent. Ultimately, it is up to the J-2 visa holder to decide what is the best option given their particular circumstances. There is currently a case pending before the Administrative Appeals Office which should bring some clarity to this problem. Page 24

28 CHAPTER 5: O-1 Visa For FMG Physicians who qualify, the O-1 visa can be a great option. Although the O-1 visa can be sought by a variety of professions, it is O-1A visa that is typically the type of O visa sought by physicians. Since other types of O-1 visas are outside the scope of this book, we will be referring to the O-1A as simply O-1. To qualify for an O-1 visa, the FMG Physician must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the U.S. to continue work in the area of extraordinary ability. Extraordinary ability for an FMG physician means that the physician is one of the small percentage who has risen to the very top of the field. At first glance the O-1 requirement of extraordinary ability may seem unattainable but by narrowing the field of the FMG Physician it may be possible. Let s take the hypothetical of Felipe. Felipe is a native and citizen of Barbados. Felipe completed residency in the U.S. in the field of anesthesia, he then completed a fellowship in pediatrics. Specifically, Felipe focuses his time working on pediatric patients needing full body casts for the treatment of scoliosis. Felipe could argue extraordinary ability in the field of anesthesiology for cases of full body casts for the treatment of scoliosis in pediatric patients. Felipe can argue national acclaim in Barbados and use his O-1 to continue work on anesthetizing pediatric patients needing full body casts for the treatment of scoliosis. By narrowing Felipe s field, we have made him one of the small percentage who has risen to the very top of his field. Does Felipe have international or national recognition as an anesthesiologist? Probably not. Does Felipe have international or national recognition as a pediatric anesthesiologist? Probably not. Now, in his field of anesthesiology for cases of full body casts for the treatment of scoliosis in pediatric patients he is definitely the best (and possibly the only physician with such a specialty) in Barbados and he is probably one of the best internationally in his limited field. Felipe must also meet the other O-1 requirements listed in the next section of this chapter. The O-1 visa is for an initial stay up to three years, and can be extended in one year periods indefinitely as needed! Also, although the FMG Physician may only engage in authorized employment during the period allotted by the O-1 visa, the FMG Page 25

29 Physician does get a period of up to 10 days before the validity period begins and 10 days after the validity period ends to settle into and out of the U.S. as needed. Note however for the medical facility that if the employment of an O-1 FMG Physician is terminated for reasons other than voluntary resignation, the medical facility must pay for the reasonable cost of the FMG Physician s return transportation to their last place of residence before entering into the U.S. What are the requirements for an O-1 visa? To obtain an O-1 visa, the FMG Physician will have to submit evidence of a major, internationally-recognized award, OR evidence of at least (3) three of the following: Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field Published material in professional or major trade publications, newspapers or other major media about the FMG Physician and the FMG Physician s work in the field for which classification is sought Original scientific, scholarly, or business-related contributions of major significance in the field Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought A high salary or other remuneration for services as evidenced by contracts or other reliable evidence Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought Page 26

30 Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation The FMG Physician may also submit comparable evidence in order to establish eligibility by arguing the above standards do not apply to doctor s unique occupation. This opens the door for Felipe, from the above hypothetical, to submit other comparable evidence from his very specific field. The application for the O-1 must also be accompanied by the following: A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the FMG Physician s area of ability. If Felipe demonstrates that an appropriate peer group, including a labor organization, does not exist in his field the decision will be based on the other evidence of record. A contract between a medical facility and the FMG Physician or a summary of the terms of the oral agreement under which the FMG Physician will be employed. Such evidence may include but is not limited to: s between the medical facility and the FMG Physician, a written summation of the terms of the agreement, or any other evidence which demonstrates that an oral agreement was created. The summary does not have to be signed by both parties to establish the oral agreement. However, it must document the terms of the employment offered and that the FMG Physician has agreed to the offer. An itinerary or explanation of the work the FMG Physician will be completing in the U.S. with beginning and ending dates. For example, in Felipe s case the itinerary would probably be a more detailed version of the following January 2014 January 2017: Anesthetize pediatric patients needing full body casts for the treatment of scoliosis at ABC Children s Hospital in San Francisco, California. ABC Children s Hospital typically has X number of these cases per year. Evidence regarding the wage offered, but note that unlike with the H-1B there is no prevailing wage requirement. Furthermore, no particular wage structure is required. A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement. Page 27

31 How long does it take to get an O-1? The processing time can change based in part on the case load of the different USCIS Service Centers. The location of the filing also depends on what type of petition is filed and on where the employer is located. According to the latest processing times report from the Vermont Service Center and the California Service Center, O-1 petitions are currently taking approximately three months to process. These times can change on a monthly basis. Page 28

32 CHAPTER 6: Lawful Permanent Residency (Green Card) Ultimately it is the goal of many FMG Physicians who wish to remain in the U.S. to obtain Lawful Permanent Residency (a Green Card) and not have to worry about their visa status. Although the term Green Card is commonly used, lawful permanent residency cards haven t actually been green in quite some time and the proper term is of course, lawful permanent residency. An individual may apply for permanent residence through employment and may submit their application while physically present in the U.S. ( adjustment of status application) or at a consular post abroad (immigrant visa application). The application process for an FMG Physician generally has several steps, and is usually commenced by a sponsoring employer. Step 1: The employer submits an immigrant petition with the USCIS. This petition is called an I-140 petition and is a request that the sponsored FMG Physician be categorized in an employment based immigrant classification (which is usually either first or second preference). Please note that some second preference petitions require the submission of an approved labor certification. Step 2: If the immigrant petition is approved and a visa number is available for his or her classification, the sponsored FMG Physician may apply for their permanent residence. If the FMG Physician is abroad and an immigrant visa number is available, FMG Physician may apply for an immigrant visa at the consular post in their home country. Alternatively, if physician is lawfully present in the U.S., s/he may submit an adjustment of status application. When the physician submits this application, s/he may also request a travel document (Advance Parole) and employment authorization document (EAD). There are several avenues which a FMG Physician can utilize to obtain their lawful permanent residency. The more common methods are discussed below. PERM Labor Certification for FMG Physicians One commonly used method to obtain lawful permanent residency for FMG Physicians is through the use of a PERM labor certification. Page 29

33 Labor certification is a process by which an employer tests the U.S. labor market prior to offering a permanent position to a foreign worker (including a foreign FMG Physician). Under the Program Electronic Review Management (PERM), as administered by the U.S. Department of Labor (DOL), the employer may submit a labor certification electronically after completing a recruitment plan to demonstrate that there are no qualified U.S. workers who are willing and available to take the job opportunity. The date of filing the PERM application will be the FMG Physician s priority date for purposes of applying for their residence. If the PERM application is certified by the DOL, the employer may then submit with USCIS the I-140 Immigrant Petition on behalf of the FMG Physician seeking classification in the employment based second preference category. Once the I-140 petition is approved and the priority date becomes current, the FMG Physician may apply for their residence either in the U.S. (an adjustment of status application) or abroad (through consular processing). Medical Facility s Responsibilities It is important to note that the employer, in this case the medical facility, must assume certain responsibilities and costs in embarking in the labor certification process. First, the medical facility is attesting that it has the intention to hire on a permanent basis the FMG Physician at the prevailing wage, as defined in the DOL s regulations. Generally, the prevailing wage is the average wage earned by workers in the same occupation in the area of intended employment. As the prevailing wage varies from region to region, the employer is required to obtain a prevailing wage determination from the State Workforce Agency (SWA) as part of the pre-filing process. Second, the employer is required to assume the costs associated with the labor certification process. These costs include expenses for the required advertisements as well as the attorneys fees incurred for legal services associated with the filing of the PERM application. PERM Recruitment Requirements Under PERM, the medical facility is required to undergo and document certain recruitment steps. The regulations require employers to perform the following Page 30

34 steps within six months prior to filing the labor certification application under PERM: Print Ads: The medical facility is required to place an advertisement on two different Sundays in a newspaper of general circulation in the area of intended employment. These advertisements must include sufficient information to apprise U.S. workers of the job opportunity. To achieve this, the regulations specify what information must be included in these ads. Placement of a Job Order with the SWA: The medical facility must place a job order with the SWA serving the area of intended employment for a period of 30 days. Notice of Filing: If the employer has entered into a collective bargaining agreement with a union representing employees in the occupation for which the labor certification is filed, the employer must provide notification to the union representative of the job opportunity. If the employer is not unionized, the notice must be posted for 10 consecutive business days at the employer s facility at a conspicuous place between 30 and 180 days before the filing of the PERM application. The regulations list the information that must be included in this notice. Moreover, the employer must post this notice in any and all in-house media if such media is normally utilized to by the company to recruit individuals for similar positions. Additional Recruitment Steps: In addition to the above mandatory steps, the employer must select three more recruitment steps from the following: Employer s Web Site Job Search Web Sites (other than the employer s web site) Career/Job Fairs On-Campus Recruitment College Campus Placement Offices Trade or Professional Organizations/Publications Private Employment Firms Employee Referral Programs with Incentives Page 31

35 Local and/or Ethnic Newspapers Radio and Television Advertisements Although the medical facility does not submit supporting documentation with the PERM application, the medical facility must ensure that documentation confirming the recruitment efforts and notice posting is retained. The medical facility must also ensure that all resumes received are reviewed promptly, and that appropriate action is taken within a reasonable amount of time. The medical facility must document the legitimate business reasons explaining why each applicant was rejected. When should a FMG Physician apply for a PERM? PERM applications can only be submitted by the employer. As a result, it is in the FMG Physician s best interest to find a medical facility or coordinate with their current medical facility employer to develop long term immigration strategies. Because of recent retrogression in certain employment based preference classifications, early filing of PERM applications is imperative for purposes of securing a priority date. By planning appropriately, the FMG Physician will have more flexibility in the immigration process. Lawful Permanent Residence through a National Interest Waiver Some FMG Physicians do not pursue their residency through the PERM Labor Certification process, instead some FMG Physicians request a National Interest Waiver. The requirements for this option are as follows: The FMG Physician must work in a Medically Underserved Area/Medically Underserved Population (MUA/MUP) or a Health Professional Shortage Area (HPSA) or within a VA facility. The FMG Physician must work for five years at the designated facility prior to obtaining permanent residence (or three years if the application was filed prior to November 1, 1998). The time must be in the aggregate which allows the FMG Physician to stop and start employment based on their own personal needs. A department of health in any state or a federal agency must have found that the FMG Physician s services are in the national interest. The state s centralized department of health must provide an attestation. Page 32

36 A Federal Agency must attest to the FMG Physician s ability to practice capably. The VA letter or contract must have been issued within six months prior to filing the National Interest Waiver application. What are the benefits to the FMG Physician when they apply for a National Interest Waiver? The most popular reason to make this five year employment commitment is that the FMG Physician is able to self-petition for a national interest waiver while in PERM labor certification cases the medical facility must sponsor the FMG Physician. This means that the FMG Physician and medical facility do not need to participate in the labor certification process which requires the medical facility to demonstrate that no other qualified U.S. worker will take the position. By filing for a National Interest Waiver the FMG Physician is afforded flexibility in the application process. Of interest to the National Interest Waiver applicant is the ability to apply for the National Interest Waiver prior to the time that the service agreement has concluded. The FMG Physician should note that s/he cannot actually obtain permanent residency until they have fulfilled the service requirement, but by immediately filing for the adjustment of status application the FMG Physician is able to also file for employment authorization and the travel document. When the FMG Physician applies for his or her permanent residency he can also file for work authorization and travel documents for his or her spouse and children The National Interest Waiver concept can be quite attractive and fold in well with the track that the FMG Physician who has obtained a waiver of the J-1 home country return requirement in that often times such a FMG Physician has already committed to a three year service requirement in a designated shortage or other National Interest Waiver qualifying area. With two additional years of service the FMG Physician can then obtain permanent residency. However, before applying for permanent residency, the FMG Physician must also be mindful of the three year H-1B service requirement if s/he obtained a J-1 waiver. Thus the FMG Physician must ensure his or her compliance with their H-1B service obligation. In these instances it would be advantageous for the FMG Physician to Page 33

37 wait before filing for work authorization until their three year H-1B service obligation is fulfilled. When should a FMG Physician apply for a National Interest Waiver? FMG Physicians should consider applying for a National Interest Waiver as soon as possible. Keeping in mind the H-1B commitment for those in J-1 waiver status, the FMG Physician can apply for permanent residence and forgo the work authorization document, relying instead on his or her underlying H-1B status to continue working for the facility who has served as sponsor. Once the commitment is fulfilled, the FMG Physician can then apply for work authorization based on a pending permanent residence application. It should be noted that recently, for National Interest Waiver employment based visa categories, visa numbers have not been immediately available for Indian and Chinese applicants and numbers could even retrogress for other foreign nationals. Applying for a National Interest Waiver early provides the FMG Physician with an early priority date for permanent residency. With an early priority date the FMG Physician has a better chance of obtaining permanent residency as soon as the service requirement has been fulfilled. Why should a FMG Physician pursue PERM labor certification over a National Interest Waiver? The PERM process has the potential to allow the FMG Physician to obtain lawful permanent residence more expeditiously than the National Interest Waiver process. If a FMG Physician requests a National Interest Waiver based on service in a medically underserved or shortage area or a VA facility, the FMG Physician must complete the five year commitment in order to be approved for lawful permanent residence. Because PERM streamlined the labor certification process, the medical facility, with the help of an experienced attorney, may be able to complete the recruitment process fairly quickly. As a result, the time that the medical facility spends satisfying the pre-filing requirements may potentially be shorter than the time that it may take to gather all of the necessary documentation to support a National Interest Waiver. Finally, the standards for completing the labor certification and obtaining approval for the I-140 petition based on the certified PERM application may be easier to satisfy than the requirements for a National Interest Waiver. Although a medical facility is not permitted to continue with a Page 34

38 PERM application if a qualified U.S. worker is available and willing to accept a job opportunity, a medical facility generally will not face this problem as medical facilities usually find that U.S. workers are unavailable before they decide to hire foreign workers. Does a FMG Physician have any other options other than a PERM or a National Interest Waiver? If the physician has extraordinary or exceptional ability in his or her field, s/he may consider submitting an I-140 petition seeking classification in the employment based first preference category as a foreign national of extraordinary ability or second preference category as a foreign national of exceptional ability. This may be a good option for a FMG Physician who has already obtained an O-1 visa. To prove extraordinary ability, the FMG Physician must submit evidence of a major one time achievement or must meet three of the listed criteria below: Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence Evidence of membership in associations in the field which demand outstanding achievement of their members Evidence of published material about the FMG Physician in professional or major trade publications or other major media Evidence that the FMG Physician has been asked to judge the work of others, either individually or on a panel Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field, as applicable Evidence of authorship of scholarly articles in professional or major trade publications or other major media Evidence that work has been displayed at showcases Evidence of performance of a leading or critical role in distinguished organizations Evidence that the FMG Physician commands a high salary or other significantly high remuneration in relation to others in the field Page 35

39 To prove exceptional ability, the FMG Physician must meet three of the listed criteria below: Official academic record showing that the FMG Physician has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability Letters documenting at least 10 years of full-time experience A license to practice or certification Evidence that the FMG Physician has commanded a salary or other remuneration for services that demonstrates exceptional ability Membership in a professional association(s) Recognition for achievements and significant contributions by peers, government entities, professional or business organizations Other comparable evidence of eligibility Although employment-based second-preference petitions must generally be accompanied by an approved labor certification, FMG Physicians can seek a national interest waiver using different requirements than those discussed previously. These national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the U.S. would greatly benefit the U.S. The FMG Physician must show that it is in the interest of the U.S. to waive the labor certification requirement. This type of national interest waiver is different than a National Interest Waiver which requires the physician to serve in a Medically Underserved Area/Medically Underserved Population (MUA/MUP) or a Health Professional Shortage Area (HPSA) or within a VA facility. Again, those seeking a national interest waiver may self-petition (they do not need a medical facility to sponsor them). USCIS has in recent years scrutinized extraordinary and exceptional ability petitions very heavily. The immigration regulations provide particularly high standards for these classifications and the FMG Physician and his or her prospective employer must be mindful of the documentation that will be required to establish eligibility for these classifications. Page 36

40 A FMG Physician who is teaching at a University may potentially be sponsored by the educational institution. Under PERM, the University has the option of submitting a labor certification application pursuant to special handling requirements, which include recruitment procedures that are different from the regular procedures for recruitment of professional workers. There is also an employment based first preference category for outstanding professors and researchers. The FMG Physician in this category must demonstrate international recognition for his or her outstanding achievements in a particular academic field. The FMG Physician must have at least three years experience in teaching or research in that academic area. Also, the FMG Physician must be entering the U.S. in order to pursue tenure or tenure track teaching or a comparable research position at a university or other institution of higher education. The FMG Physician must include documentation of an offer of employment from a prospective U.S. employer and evidence at least two of the following: Evidence of receipt of major prizes or awards for outstanding achievement Evidence of membership in associations that require their members to demonstrate outstanding achievement Evidence of published material in professional publications written by others about the alien's work in the academic field Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field Evidence of original scientific or scholarly research contributions in the field Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field Under the right circumstances, these too can be excellent options for a FMG Physician. Page 37

41 FAQ Regarding Lawful Permanent Residency If I obtained a J-1 waiver can I immediately apply for permanent residency? If a FMG Physician s J-1 waiver was granted based on a sponsorship by an Interested Government Agency or based on Conrad 30 (or State 30), the FMG Physician must ensure that s/he completes his or her three year commitment to provide services in an underserved area. If this commitment is not fulfilled, the twoyear home country residency requirement is reinstated, and the FMG Physician will not be eligible for lawful permanent residence. May a FMG Physician change employers once he/she becomes a Lawful Permanent Resident? When a worker is granted lawful permanent residence based on an employer s sponsorship, it is generally based in part on the assertion that the worker intends to work for the petitioning employer. This requirement has lost some relevance with changes in legislation in recent years. Nevertheless, it is a requirement that is worth noting. That being said, a lawful permanent resident is free to work and live where s/he chooses in the U.S. Although the Green Card does have an expiration date, permanent residence does not expire if the card expires. However, a lawful permanent resident must have his or her Green Card to re-enter the U.S. and to demonstrate employment authorization. What is EAD or a Work Permit? EAD is an Employment Authorization Document. These types of documents are granted for individuals in certain categories, such as individuals with adjustment of status applications that are pending, F-1 students who are granted curriculum or optional practical training, or spouses of L-1 or E-2 visa holders. Generally, EADs allow the holder to work for any employer and are valid for one year. They can be renewed for as long as the underlying eligibility requirements are met. If the FMG Physician has received his EAD, would s/he be able to work anywhere? If the FMG Physician has applied for an employment based green card, s/he may change employers if the I-485 application to adjust status has been pending for Page 38

42 more than 180 days and the I-140 petition is approved or approvable. The new position must be in the same or similar position. Can a physician who is a Lawful Permanent Resident apply for U.S. Citizenship? Will this change affect his/her employer? An individual may apply for naturalization after being a lawful permanent resident for five years. There are other requirements that must be met, such as certain physical presence in the U.S. and good moral character requirements. Naturalization does not affect the FMG Physician s employment. Page 39

43 CHAPTER 7: Summary We hope that by the completion of this book you have an understanding of the most common way to waive the two year home residency requirement for FMG Physicians in J-1 status. (Chapter 3). Also that you understand the different options available to FMG Physicians after approval of the J-1 waiver, (Chapter 4: H-1B and Chapter 5: O-1) and your options for keeping a FMG Physician permanently (Chapter 6). This book is not designed to replace the services of an experienced immigration attorney. An immigration attorney can make the process of employing a FMG Physician, either temporarily or permanently, smooth and stress free. We hope that you ll find the use of FMG Physicians to alleviate your shortage of physicians and that both your medical facility and your patients benefit from the services of your FMG Physician. Page 40