Foreign physicians looking to advance their specialized careers in the United States can gain valuable experience and connections by working a physicians or fellows.
Generally, there are two visa classification options available to foreign physicians seeking temporary employment or training in the United States: (1) the J-1 Exchange Visitor Physician Program, and (2) the H-1B Specialty Occupation classification. Each of these classifications has unique requirements and benefits, but both require that the applicant demonstrate that he or she has obtained the required licenses and training necessary to practice in both the United States and the specific state of intended practice.
J-1 EXCHANGE VISITOR PHYSICIAN PROGRAM
The J-1 Exchange Visitor Physician Program permits foreign physicians and medical graduates to participate in U.S. graduate medical education programs or training at accredited U.S. schools of medicine. However, the J-1 classification does not permit full employment as a physician in the United States because the program focuses on providing graduate medical education or training in a specialty or sub-specialty occupation. Therefore, the J-1 is best suited to a foreign physician or medical graduate that wishes to gain additional education or clinical training at a United States-based institution.
To qualify for the J-1 Exchange Physician Program, the applicant must meet the following prerequisites:
Adequate prior education and training to participate satisfactorily in the program for which the applicant is coming to the United States;
Able to adapt to the educational and cultural environment in which the applicant will be receiving the education and training;
Have the background, needs, and experiences suitable to the program;
Have competency in oral and written English;
Have passed either Parts I and II of the National Board of Medical Examiners Examination, the Foreign Medical Graduate Examination, Step I and Step II, or the Visa Qualifying Examination (VQE) prepared by the National Board of Medical Examiners, administered by the Educational Commission for Foreign Medical Graduates;
Provide a statement of need from the government of the country of the applicant’s nationality or last legal permanent residence. Provide written assurance to the Secretary of Health and Human Services that there is a need in that country for persons with the skills the alien physician seeks to acquire, and that the alien physician has filed a written assurance with the government of that country that he/she will return upon completion of the training; and
Present an agreement or contract from a U.S. accredited medical school, an affiliated hospital, or a scientific institution to provide the accredited graduate medical education. The document must be signed by the alien physician and the official responsible for the training.
As noted above, one of the requirements of participation in the J-1 program is that the applicant will provide assurances that he or she will return to his or her home country upon completion of the program. This means that a J-1 participant will likely not be able to pursue further employment in the United States immediately upon completion of the program. Rather, the participant will generally need to return to his or her home country and then pursue a different immigrant classification at a later date (generally after two years). See Section 212(e) of the Immigration and Nationality Act. There are certain waivers of this requirement available in specific circumstances. If you believe a waiver may be applicable to your situation, you should consult with an immigration attorney, as the waiver process itself can be complex.
In order to take part in the J-1 exchange program, an applicant must first obtain sponsorship from a designated United States entity. Currently, the Department of State has designated the Educational Commission for Foreign Medical Graduates (ECFMG) as the only sponsor for all alien physicians who wish to pursue a program of graduate medical education or training.
As part of the application process, the ECFMG will require the applicant to demonstrate that he or she meets all eligibility requirements of the J-1 program. This will involve providing documentation and statements regarding the requirements listed above. A qualified immigration attorney can assist with ensuring all documents and statements are prepared and organized properly.
Waivers of 2 Year Home Country Requirement
Most J-1 physician programs require the participant to return to their home country for two years before being permitted to apply for a new United States visa. This is often referred to as the “two-year home country requirement.” Fortunately, there are several waivers available that will permit the foreign physician to waive the requirement and immediately apply for a new United States visa status, which include the following:
A. Conrad 30 Waiver
The Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the two-year residence requirement upon completion of the J-1 exchange visitor program through a state-specific recommendation. As the name implies, each state is permitted to grant up to 30 waivers of the 2 year home country requirement each year. While each state has its own specific requirements with regard to Conrad 30 Waiver requirements, the following requirements must be fulfilled regardless of the state in which the intended employment will occur:
Foreign physician must agree to be employed full-time in H-1B non-immigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP);
Foreign physician must obtain a contract from the health care facility located in an area designated by HHS as a HPSA, MUA, or MUP;
Foreign physician must obtain a “no objection” letter from his or her home country if the home government funded his or her exchange program;
Foreign physician must agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date his or her J-1 visa expires.
B. Department of Health and Human Services (HHS) Waiver
A foreign physician subject to the J-1 two-year home country requirement can apply to The Department of Health and Human Services (HHS) for a waiver of the requirement. While the HHS does not grant waivers itself, it does accept waiver applications and make waiver recommendations to the Department of State. The HHS accepts waiver requests in two circumstances: 1) research performed in an area of priority or significant interest to the agency, and 2) health care services needed in a Health Professional Shortage Area (HPSA) in the United States. Additionally, to qualify for an HHS waiver, the foreign physician must agree to deliver health care services for three years in a mental health or primary care HPSA.
C. Appalachian Regional Commission and Delta Regional Authority Waiver
Under certain circumstances, the Appalachian Regional Commission and the Delta Regional Authority may request a waiver of the two-year home country requirement. Physicians receiving these waivers must practice for at least three years in rural Appalachian or Mississippi Delta Region areas that suffer significant shortages of health care providers. These areas, called “Health Professional Shortage Areas,” are identified by the U.S. Public Health Service. Requests for waivers under the ARC and DRA J-1 Visa Program must be sponsored by a state within the Appalachian Region or Mississippi Delta Region.
To successfully obtain an ARC or DRA waiver, the requesting facility must demonstrate that there are no able and willing United States physicians available to accept the requested position. This is accomplished through actively recruiting within the United States, and then issuing a recruitment report as part of the waiver application.
D. Veterans Affairs (VA) Waiver
The Department of Veterans Affairs (VA) is permitted to request waivers of the two-year home country requirement for foreign physicians when it can be demonstrated that a VA facility has an “overwhelming need” for the physician’s services. To obtain a VA waiver, it must be demonstrated that there are no willing and able United States physicians to fill the role. As with the ARC and DRA waivers, this is accomplished by the VA actively recruiting within the United States, and then issuing a recruitment report prior to applying for the waiver.
The VA waiver is especially attractive to foreign physicians in unique specialties because it will be easier for the VA facility to argue its “need,” and to demonstrate a shortage of able and willing candidates for the role. It should also be noted that under the VA waiver, the foreign physician is not required to demonstrate that the intended employment is in a medically under-served area.
2. H-1B SPECIALTY OCCUPATION CLASSIFICATION
Alternatively, the H-1B Specialty Occupation classification permits qualified foreign nationals to obtain employment in the United States in a “specialty occupation.” For the purposes of the H-1B, a “specialty occupation” is an occupation that normally requires at least a United States bachelor’s degree or a foreign equivalent. Fortunately, a physician is an occupation recognized by the United States government as a “specialty occupation.” Therefore, the H-1B classification is a viable option for obtaining employment as a physician, medical teacher, or medical researcher in the United States. H-1B visas are generally granted for up to three years initially, and can be extended to a maximum of six years. Obtaining H-1B classification is a multi-step process that involves multiple government agencies and specific evidentiary requirements.
Obtain an Offer of Employment from a US Employer
First, the foreign physician must secure an offer of qualifying employment from a United States employer. Qualifying employment for a physician would be an employment position in which the foreign physician is actually performing the duties of a physician, or in a similar researcher/educator capacity.
2. The US Employer Files a Petition on the Physician’s Behalf
Once the foreign physician has secured an offer of employment, the United States employer must file an H-1B petition on the foreign physician’s behalf. The petition process requires a prevailing wage determination, Labor Condition Approval, and Petition for Non-immigrant worker filed with USCIS.
If the foreign physician beneficiary is currently located in the United States and in a classification that permits Adjustment of Status from his or her current status to H-1B status, the petition application can include a request to change the beneficiary’s status to that of an H-1B. If the foreign physician beneficiary is outside the United States, once the petition is approved, the beneficiary will be required to attend an interview at a United States consulate or embassy in which he or she will obtain an H-1B visa.
3. Demonstrating Eligibility to Practice Medicine in the United States
In addition to demonstrating that the proposed position is a “specialty occupation,” the foreign physician must also provide evidence that he or she meets all license and education requirements in the United States and the particular state in which the physician will practice. For the purposes of the H-1B classification, this will involve demonstrating that the foreign physician has:
Obtained a valid medical degree (M.D.) from an accredited United States university or foreign equivalent;
Competency in both written and oral English demonstrated through completion of an examination administered by the Educational Commission for Foreign Medical Graduates (ECFMG);
Achieved a passing score on the United States Medical Licensing Examination (USMLE) Parts 1, 2 and 3; and
Must hold an unrestricted state license, which permits the practice of medicine (and any specialty), in the intended state of employment.
4. Cap-Subject and Cap Exempt H-1B Applications
Another important consideration in applying for H-1B classification is whether the petition application will be subject to the H-1B “cap”. USCIS limits the number of H-1B visas that it issues each year to 85,000. Cap-subject petitions must be filed on April 1 for an employment start date of October 1 in the same calendar year. Given the popularity of the H-1B classification in recent years, far more applications are filed each year than available H-1B visas.
For example, USCIS received 201,011 applications for only 85,000 spots by April 5, 2019 for the fiscal year 2020 application period. In response, USCIS has implemented a lottery system, which randomly selects H-1B petition applications for adjudication. Based on 2019 numbers, an application with a Bachelor’s Degree only has a 32% chance of making it though the lottery, while a Master’s Degree cap application has a 42% chance. Changes in the 2019 lottery system are aimed to favor applications with Master’s Degrees.
Fortunately, there are many physician positions that are “cap-exempt.” Many education institutions (including hospitals affiliated with universities), Veterans Administration facilities, and non-profit organizations are exempt from the H-1B numerical limitation. This means that the H-1B petition application will not be subject to the annual lottery, and that the application can be submitted at any time during the year, meaning that the beneficiary will not be required to wait until October 1 to begin employment. A qualified immigration attorney can determine whether an H-1B employer and/or employment position will be subject to the annual numerical cap. This is a major advantage to a qualifying physician applicant over other H-1B applicants.
3. OBTAINING LEGAL PERMANENT RESIDENCE AS A PHYSICIAN
In addition to the temporary employment opportunities available to foreign physicians, there is also the possibility of obtaining permanent residence through employment. The permanent residence classification most relevant to physicians is the Employment Based Second Preference (EB-2) classification. This classification contains two different paths to permanent residence applicable to foreign physicians: 1) advanced degree, and 2) National Interest.
The most common sub-category of the EB-2 classification for physicians is the “Advanced Degree” sub category. This sub-category requires the foreign physician to demonstrate that he or she has a valid job offer that requires an advanced degree (Master’s degree or higher). This is generally not an issue because all physicians in the United States must possess advanced degrees to practice medicine.
In addition to the degree requirement, the petitioning employer must also demonstrate that there are no willing and able United States-based physicians available for the position. To demonstrate this, the petitioning employer must go through a multi-step process known as “PERM.” The PERM process involves actively recruiting for qualified United States candidates and then submitting a Permanent Labor Condition Application to the United States Department of Labor (DOL).
If a petitioning employer can demonstrate that it has made a good faith effort to locate qualified United States candidates but was unsuccessful, the DOL will issue a certified Permanent Labor Condition Application. Once the petitioning employer has this certification, it can file an immigrant petition on the foreign physician’s behalf to United States Citizenship and Immigration Services (USCIS).
Once the immigrant petition is approved by USCIS, the foreign physician will then apply for permanent residence. This process will differ depending on the foreign physician’s location–if the foreign physician is in the United States in a different valid status, such as an H-1B, he or she can submit an application to adjust status to that of a permanent resident. If the foreign physician is outside the United States, he or she will be required to attend an interview at a United States embassy or consulate to obtain an immigrant visa.
2. National Interest Waiver
The National Interest Waiver is unique in that it does not require a United States petitioner to file a petition on the applicant’s behalf. Under the National Interest Waiver, the applicant can “self-petition” by demonstrating that it is in the interest of the United States to grant the applicant permanent residence. The National Interest Waiver is a highly challenging status to obtain and would generally only be available to foreign physicians who are nationally or internationally recognized for their contributions to their field. A successful application will generally require evidence of lead-authorship in respected journals, recognition by nationally or internationally known organizations, evidence that the foreign physician discovered or perfected new medical techniques and/or treatments, and other evidence of national or international recognition and professional accomplishment.
The J-1, H-1B, and permanent resident classifications can offer valuable medical training and employment in the United States. While the application processes can be challenging, proper planning and preparation can lead to success. The experienced immigration attorneys at The Grady Firm, P.C. can assist with determining the proper classification and then prepare a comprehensive application with persuasive arguments and supporting evidence.
ABOUT THE GRADY FIRM, P.C.
The Grady Firm, P.C. attorneys help physicians, individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas, as well and Green Cards and citizenship based on family relationships, investment, or employment. In addition, The Grady Firm attorneys help foreign entrepreneurs establish a U.S. presence, form a corporate entity, and obtain the appropriate visas for their owners and employees.
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This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.
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