Overview : Immigration Options for Medical Doctors
Posted Aug 01, 2003
At the 2003 American Immigration Lawyers Association (AILA) conference, we gathered some information from the session on medical doctors that we are certain will prove valuable to many MurthyDotCom and MurthyBulletin readers.
H1Bs for Physicians
In order to be eligible for an H1B, a doctor must be licensed in the jurisdiction where s/he will be practicing, except if s/he is practicing in a Department of Veterans Affairs (DVA) facility. S/He must have graduated from medical school and have passed either the Federal Licensure Examination (FLEX) or the equivalent U.S. Medical Licensing Examination (USMLE). Contrary to some reported rumors circulating among foreign-trained physicians, all three steps of the USMLE exam must be completed. It is not sufficient to complete the first two steps, alone. Reference letters are also often required.
The foreign doctor who changes to H1B status after acquiring a J-1 waiver must change to H1B status within 90 days of getting the waiver approval. Therefore, it is important that s/he has all of the required documentation in order well ahead of time. Otherwise, the physician may go through the waiver process only to discover that s/he cannot get the H1B. If the J-1 holder goes beyond his or her 30-day grace period, s/he must apply for the H1B visa at the consulate. There may be significant delays at the consulates due to security checks, or if the physician is subject to the Technology Alert List, which was discussed in our April 4, 2003 article, Technology Alert List Screening Includes Indian Nationals, as well as our July 4, 2003 article, DOS Issues New Mantis Cable.
Alternatives to H Status
In the past, O-1 has been a popular alternative status for doctors. The O-1 visa is for people with “extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim.” However, in recent years the BCIS / Legacy INS has cracked down on O-1 visas, making them more difficult for physicians to obtain. Also, an O-1 visa may not be attractive to a doctor seeking permanent residence, as some employers are content to keep their physician employees on O-1s indefinitely, rather than sponsoring their permanent residence petitions.
HPSA and MUA Designations
Doctors taking primary care jobs pursuant to a waiver must, in fact, work full time in that primary care job in the Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA), where it is purported to be. The doctor must not use the primary care job as cover for a specialty job. This can raise extremely severe fraud concerns. As our regular readers know, a finding of fraud may lead to removal and a permanent bar to reentry.
The employer must demonstrate that the facility is in an HPSA or MUA. HPSA statistics are generally more up to date and reliable, and are more widely accepted. The Department of Health and Human Services (DHHS) and some state programs permit MUA as well as HPSA designations. The physician should keep in mind that shortage designations change as doctors move in and out of the HPSA or MUA, so it is important to have up-to-date information on these designations. The DHHS's Bureau of Health Professions WebSite posts the most recent data provided by states, but some states have been known to forget to provide data. This could result in withdrawal of the designation.
State and Federal Programs
States are becoming more flexible in accepting physicians who will pursue a specialty medical occupation, but many states and most Federal programs still do not accept specialists. Most Conrad State 30 Programs run from October 1 through September 30. It is important to ask the state administrator whether there are any slots available in that state. If no slots are left for the current year, the candidate may be eligible for a slot in the following year. The employer must show recruitment in the vast majority of cases. Such recruitment should be in national publications such as, but not limited to, The New England Journal of Medicine, JAMA: The Journal of the American Medical Association, or The New York Times physicians' section. For specialist physician positions, the recruitment should be in specialist journals. The recruitment must be relatively contemporaneous to the filing of the waiver application.
Split appointments, where, for example, the doctor works 5/8 of his or her time at a DVA facility and 3/8 at a university, historically have been fairly common. Today, some regions of the DVA frown on split appointments. These are still permissible, but the doctor should be cautioned that the safest course of action would be to fulfill the full-time work requirement in the position for which the waiver was obtained, and work in the other position in addition to, not in place of, fulfilling the full-time requirement. The physician must have separate H1Bs for each job.
The timing of filing for a J-1 waiver is critical. The applicant must be careful not to wait so long that s/he will fall out of J-1 status before being able to work in the position, as waiver cases take a long time. However, with a DVA case, the applicant also must not start so early that new recruitment will be required. The DVA scrutinizes recruitment very closely and commonly requires more recruitment. This stems from skepticism that the facility is unable to find qualified American applicants.
Changing Jobs within the Three-Year Period
In order for the foreign medical graduate to change jobs during the three-year period after obtaining the J-1 waiver, s/he must demonstrate “extenuating circumstances.” Unfortunately, Congress has not defined this term, but has stated that closure of the business or “hardship to the foreign national” may constitute extenuating circumstances. BCIS regulations state that the hardship must be from unforeseen circumstances beyond the control of the international medical graduate. This may or may not include situations such as closure of the facility, inability of the employer to pay the physician, or employer misconduct. Personal or medical hardship may also constitute extenuating circumstances, if it is genuine, unforeseen, and well-documented. Each case will be decided on a case-by-case basis, and it is important that the circumstances be well documented. The BCIS will be less inclined to find extenuating circumstances in the case of a mere argument over money, however.
It can be risky for the international medical graduate to change jobs because the application to change to the new job may result in increased scrutiny that will cause the BCIS to find that s/he has not complied with the terms of the waiver, and this may result in loss of the waiver and in the doctor's becoming re-subject to the 2-year home residency requirement.
Conclusion
Doctors who are seeking employment in the U.S. should be mindful of licensing requirements and of all of their options, and should make their plans before the completion of medical school. With proper foresight, and the advice of a qualified immigration attorney, a foreign national physician should have little problem obtaining employment in the U.S., especially in medically underserved areas or health professional shortage areas.© The Law Office of Sheela Murthy, P.C.
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