This advisory is applicable to recruitment of international medical graduates, meaning foreign-born individuals who have completed their medical residency in the U.S.
SCENARIO #1: Physician Completing Medical Residency in J-1 status
Temporary Work Authorization: The J-1 status is the most widely used status for international physicians to complete residency in the U.S. The J-1 for all physicians has a 2 year foreign residence requirement, which means the physician cannot apply for an H-1b visa or green card without returning to his home country for two years or obtaining a waiver of the two year requirement.
There are three ways in which a doctor can get a waiver of the two year residency requirement: (1) a well-grounded fear that the physician will be persecuted in his home country based upon race, religion, or political opinion; (2) exceptional hardship to the physician’s U.S. citizen or permanent resident spouse or child if he has to return to his home country; and (3) approval from an interested government agency (IGA). The first two methods are rare; thus, the focus of this advisory is on approval from an interested government agency.
The interested government agencies willing to support a J-1 waiver include the Department of Veterans Affairs (VA), the Appalachian Rural Commission (ARC), the Department of Health and Human Services (HHS), and the Delta Regional Authority. In addition, each state can serve as an interested government agency through the Conrad State 30 Program. The “waiver” is issued in exchange for the physician working for three years in the designated area. Each state is allowed 30 waivers per fiscal year. The Conrad waiver requires the physician to work for three years in a Health Professional Shortage Area (“HPSA”) or a Medically Underserved Area (“MUA”). If the waiver is approved, the physician can apply for an H-1B work authorization and forgo the two-year home residence requirement.
Employment: The process for employment based upon a Conrad state waiver requires approval from three separate entities: the Department of State, the state of intended employment and the US Citizenship and Immigration Service. The steps and timeline are as follows:
1. Department of State Application: Submit application to the Department of State to obtain a waiver case number. This can be completed and submitted in just a few days. The estimated time is a few days to complete and submit the application
2. State J-1 Waiver Application: Submit an application through the state J-1 program in the state of intended employment. States begin accepting cases on October 1st for physicians who are completing their residency the following June. The process and timing varies by state. For example, some states such as Florida accept cases from October 1st through the first Monday in November and then select the best cases from the applications that are submitted. The best cases are determined by factors such as: (a) preference for primary care physicians including family medicine, internal medicine, pediatrics, gynecology, and obstetrics; (b) geographic areas – the areas with the greatest health professional shortage areas and also apportion them among the state rather than approving a lot in one county; and (c) the merits of the case – the patient base, need for the physician in the area, etc. In contrast, other states accept cases on a rolling basis throughout the calendar year (no deadline) and approve cases as they are received until all 30 waivers are used (assuming the case meets the merits and standard for the state). A person can apply through only one state at a time. But once a person is rejected in one state (i.e. Florida) he can apply in a state that still has waivers available. The estimated time is generally 4 to 12 weeks after case is submitted to the state.
3. Review by the Department of State: After the state of intended employment approves the waiver, the state J-1 manager sends the approval to the Department of State. The Department of State then reviews it and decides whether they are going to favorable recommend the approval (they almost always agree with the state recommendation). Thereafter they notify the USCIS that they recommend approval of the waiver. The estimated time is generally 4 to 6 weeks.
4. Review by USCIS: After the USCIS receives a favorable recommendation from the Department of State, the USCIS reviews the file and decides whether to approve the waiver (they almost always agree with the Department of State recommendation). Thereafter, USCIS issues an approval notice granting the J-1 waiver. The estimated time is generally 4 to 6 weeks.
5. H-1b petition with USCIS: The employer can file an H-1b petition for the physician to work when the J-1 waiver is issued. Actually, the H-1b petition can be filed between step #3 and step #4 above (after the Department of State forwards the recommendation to USCIS) but USCIS will not approve the H-1 until it first approves the J-1 waiver. The H-1b will be for a three year period of employment for the physician to work in the location and pursuant to the terms of the state J-1 waiver. Near the completion of the three year H-1b, there are options to extend the H-1b status or change the location or other aspects of the of the H-1b employment if the employer wants to continue employing the physician. The estimated time is generally 2 to 4 months under the regular processing; however, USCIS will process it within 15 days under the premium processing method for an additional $1,225 filing fee
Permanent Residence: There are a few methods by which a physician can obtain permanent residence in the U.S. after completing his medical residency. Below are the options in order of least likely:
1. Permanent Residence based upon extra-ordinary ability: this option is rare among physicians, especially physicians who are finishing their residency as they don’t have enough accomplishments at that stage in their career to meet the extra-ordinary ability standard. This option requires “sustained national or international acclaim” with evidence of multiple things such as a critical role within a prestigious organization, original contributions of major significance to the field, published material about the physician’s work, a high salary in comparison to others in the same field, scholarly publications by the physician, etc. While every physician would like to qualify for this route because there is no visa backlog (the supply exceeds the demand), the fact is very few meet the standard. The estimated time is generally 4 to 8 months for the I-140 petition and 3 to 5 months for the I-485 petition, but the applicant cannot receive the I-485 approval until he has completed his 3 year commitment for the J-1 waiver.
2. Permanent Residence based upon the National Interest Waiver: this option is for physicians who work in a medically underserved area (MUA), health professional shortage area (HPSA) or a Veterans Administration hospital. The work is viewed as “national interest” based upon the reduced access to physician services. While this option has the advantages of avoiding the cost and time of the PERM labor certification process and the test of the U.S. labor market, the disadvantage is that the physician must agree to work in a MUA, HPSA, or VA hospital for five years. The three years of employment for the J-1 wavier can be counted toward the time, but still requires an additional two years. The estimated time is generally 4 to 8 months for the I-140 petition and 3 to 5 months for the I- 485 petition, but the processing time can be much longer because: (a) the physician can’t receive the I-485 approval until after he completes the 5 year commitment; and (b) a visa has to be available – India and China are subject to backlogs.
3. Permanent Residence based upon PERM labor certification: Every physician can qualify under the labor certification process. While the above two processes have two steps (I-140 petition and I-485 petition) this process involves one additional step: testing the U.S. labor market and filing the application with the Department of Labor. The first part can be approved if the employer can show there is not a U.S. worker “qualified” and “available/interested” in the job. While this may seem like a high standard, in reality it is not. It simply means the employer has to go through some recruitment activities prescribed by the Department of Labor (local newspaper ad, company website, etc.) and review the resumes to determine whether anyone is qualified and available. After the PERM approval, the employer can file the I-140 petition (with evidence that the beneficiary meets the education, license and experience requirements and the employer has the ability to pay the wages) and then the physician can file the I-485 adjustment of status application when a visa number becomes available. The category for physicians is EB2 (because of the education requirement) so it is the same visa waiting time as the National Interest Waiver category mentioned above. The estimated time is generally 4 months to complete the recruitment, 8 to 18 months for the PERM labor certification depending upon whether the case is randomly selected for audit, 4 to 8 months for the I-140 petition (unless it is filed under the 15-day premium processing method for an additional filing fee) and 3 to 5 months for the I-485 petition. However, the applicant can’t receive the I-485 approval until he completes his 3 year J-1 waiver commitment.
SCENARIO #2: Physician Completing Job with Employer in H-1b Status
A physician is restricted in changing employment while completing the 3 year commitment for the J-1 waiver, unless he can obtain USCIS approval based upon “extenuating circumstances.” However, once a physician has completed the three years of service for the J-1 waiver, he has the ability to change employment. These physicians are the ideal candidates to recruit because it simply involves an H-1b transfer.
Employment: The new employer can file an H-1b petition for the physician to change employment (commonly referred to as an “H-1b transfer”). The physician can begin working as soon as the petition is “filed” with USCIS (based upon H-1b portability) or can wait until USCIS issues the H-1b approval. The physician is limited to six years in H-1b status unless he files a green card application at least a year before the sixth year limit or receives an I-140 approval before the sixth year limit. Thus, when recruiting a physician in this status, it is important to calculate how much time he has remaining in H-1b status and whether he has previously filed for permanent residence. This will determine whether the employer will need to quickly file a green card for the physician to avoid a future interruption in employment. The estimated time is generally 2 to 4 months under the regular processing; however, USCIS will process it within 15 days under the premium processing method for an additional $1,225 filing fee
Permanent Residence: The permanent residence options for a physician who has completed his three year assignment in H-1b are the same as the options above for a physician who has completed his medical residency. However, a physician who has completed 3 years in H-1b may be better qualified for an extra-ordinary ability petition or willing to do 2 more years in a MUA, HPSA or VA hospital to qualify for the NIW route. Also, it is possible that a physician who has completed a three year assignment in H-1b may have already filed a permanent residence application and may be able to continue that application with the new employer.
While this advisory provides an overview of the most common routes for physician employment and permanent residence, it cannot be relied on in its entirety. There are many nuances in immigration with international physicians. There are times when a person’s citizenship, marital status, or current immigration status can affect the options that are available. For example, unlike other nationalities a Canadian citizen physician can proceed directly to the H-1b without obtaining a J-1 waiver, but would still need to complete the waiver before permanent residence is granted. Thus, this could provide a quicker route to onboarding and short-term employment (when such is the desire) but not be beneficial if the physician wants permanent residence. Likewise, the two year foreign residence requirement for J-1 physicians is not applicable to a physician who completed medical residency in H-1b status but the physician may have a delay in employment based upon the H-1b cap. Occasionally, international physicians have other routes to permanent residence such as marriage to a U.S. citizen.
Based upon the many nuances that may be applicable, it is important to involve an immigration attorney in the discussion with the physician early in the process.