Foreign Physicians – International Medical Graduates

The immigration law is responsive to the widely held belief that there are clearly areas of shortages of physicians in the U.S. The immigration laws try to address this maldistribution of medical services in parts of the United States by providing physicians incentives to service in shortage areas. Most physicians enter the United States on either J-1 or H-1B visas. The H-1B is often considered more beneficial to the physician, whereas the J-1 may be the only option offered by certain medical schools and hospitals because of fewer employer responsibilities and liabilities.

J-1 Visa

The J-1 or exchange visitor visa is sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG). This is quasi-governmental organization that has been set up to facilitate and execute policies established by Congress and the administrative agencies that implement the immigration laws.

The J-1 Visa has the following advantages over the H-1B visa:

  • No institutional responsibility;
  • No employer sponsorship;
  • No prevailing wage requirement;
  • No employee notice requirement;
  • No employer record keeping;
  • Lesser fees payable as compared to H-1B.

Most foreign medical graduates on J-1 visas come to the United States for “graduate medical education or training”. Such doctors are subject to requirement that they return to their home countries or place of their last residence where they obtained their J-1 Visa, for two years prior to visa or Green Card, with a few exceptions for citizens of industrialized countries. However, there are situations, when it is possible, though challenging, to waive the home residency requirements. The Waiver Division of the State Department has been strictly enforcing the home residence requirement. Anyone subject to this rule must comply with it, unless she can establish that she will be subject to persecution or her U.S. Citizen/resident family members are subject to extreme hardship if she departs the United States. Few such applications have been approved.

H-1B Visa

The advantage of the H-1B visa is the absence of a two-year return requirement. In addition, the H-1B doctor has greater flexibility, including the possibility of moonlighting, and the option of full-time or part-time employment. While the spouse of a J-1 may be employed in the U.S., the spouse of an H-1B cannot be employed. Each hospital makes its own policy decision regarding whether to require foreign physicians to obtain J-1 visa, or give the doctor the option on the H-1 B visa. However, the offer of H-1B visa offers the opportunity to the hospital to attract a higher quality of foreign doctor to that hospital. However, there are a limited number of H-1B visas available every year with the exception of universities and non-profit hospitals and other non-profit institutions affiliated with universities. The foreign doctor must comply with the following:

  • have a license or other authorization required by the state of intended employment; and
  • have a full and unrestricted license to practice medicine in a foreign country, or
  • have graduated from a medical school in the U.S. or a foreign country.

For Petitioner Employers Compliance Issues

  • Must ensure that the physician is coming to the U.S. primarily to teach or conduct research, or both, for a public or nonprofit private educational or research institution or agency, and that no patient care will be performed, except that which is incidental to the teaching or research; or
  • Must ensure that the physician has passed the FLEX, or an equivalent examination as determined by HHS (like NBME or USMLE); and
  • Must ensure that the physician is competent in English or is a graduate of a medical school accredited by the U.S. Department of Education.

The H-1B visa must be sponsored by the employer. It does require various levels of employer record keeping, posting notices to employees, payment of minimum wages, the obtaining labor condition application and submitting the H-1B petition to the USCIS.

Alternatives to H-1B

If the annual H-1B cap is used up or J-1 waiver is not feasible or available, the alternatives available are TN (NAFTA), O visa, E and L. TN is limited to Canadian Citizens only for clinical care which is incidental or teaching or conducting research.. Citizens of Canada or Mexico may be eligible to practice medicine in the United States in TN-1 status, but only if they are graduates of a U.S. medical school. O visa is appropriate when the position requires one’s demonstrated extraordinary ability in the sciences. E and L visas are available for establishing or acquiring a U.S. business enterprise (i.e., medical practice) and hiring foreign physicians, or transferring them from an established foreign affiliate, subsidiary or parent. A careful well structured transfer of foreign doctors to direct the operations of a U.S. health facility could provide an optimal foundation for Green Card, in a category for qualified multinational transferees.

Canadian Medical School Graduates

Canadian medical school graduates are the most favored as compared to graduates of other countries. Through the Licensing Commission on Medical Education (LCME), U.S. Department of Education has accredited all U.S. and Canadian medical schools.

U.S. Permanent Residence (Green Card)

If the doctor wishes to obtain a waiver of the two year home residency requirement, there are three possibilities. First two are the persecution waiver and the exceptional hardship waiver. The persecution waiver is available if the physician would be subject to persecution in her own country. The exceptional hardship waiver would be available if the physician has a U.S. citizen or permanent resident spouse or child who would suffer “exceptional hardship”.

The third waiver option is on a recommendation from an interested government agency. For this purpose, the doctor must choose either a research track or a clinical track. Although the HHS approval is only a recommendation to the Department of State, which then recommends approval to the USCIS. However, as a practical matter, the HHS approval wins waiver approval.

Physicians on a clinical track must agree to practice in a Health Professional Shortage Area or a Medically Underserved Area for a minimum period of three years to be eligible for a waiver. Sponsorship by the State is called the Conard 30 program. The doctor must remain at the facility in H-1B visa status for three years in order for the waiver to be finalized and effective. Application for adjustment of status submitted before the end of the three years will be rejected. A few federal programs are also available and these include the Veterans Administration, the Appalachian Regional Commission, the Department of Health and Human Services and the Delta Regional Authority. While the foreign physician is fulfilling his three year obligation, his spouse and minor children are permitted to work and attend school.

All other doctors who wish to seek Green Cards must go through the labor certification under the PERM. The procedure requires the employer to undertake various recruitment efforts to establish that no able and willing U.S. worker is available to take up the job.

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