Temporary and Permanent Solutions for Foreign Physicians Seeking to Live and Work in the United States

When determining the immigration strategy for a physician, one must consider both the short term solutions as well as the long term goals.  The long term goal is often to immigrate to the United States without having to return to a foreign country for 2 years, where as the short term goal, is how can the doctor work in the United States now.  Here is an outline provided by the immigration attorneys at Feldman Feldman & Associates to provide a general overview of the nonimmigrant (short term) and immigrant (long term path to permanent residency) options available to physicians.

Nonimmigrant Options

J-1 Two Year Foreign Residence Requirement – Waiver Options

• ★    Persecution Waiver – demonstrate persecution on the basis of race, religion or political opinion
• ★    Hardship Waiver – physician’s departure would impose exceptional hardship to a U.S. citizen or permanent resident spouse or child
• ★    Interested Government Agency Waiver – waiver is in the public interest and compliance with the two year foreign residence requirement would be detrimental to the program that is of interest to the sponsoring agency
  • Conrad 30 Program Run by the 50 States (“Conrad 30″)
  • Appalachian Regional Commission (“ARC”)
  • Delta Regional Authority (“DRA”)
  • Veteran’s Affairs (“VA”) – may combine a university appointment (5/8 VA and 3/8 university)
  • Health and Human Services (HHS) – physicians (must have completed primary care residency training no more than 12 months prior to commencing employment in underserved area; no specialists – primary care and psychiatrists only) and scientists

Basic Requirements for Conrad 30 Waiver

• The International Medical Graduate (IMG) must have an offer of full-time employment (40 hours per week) in a federally designated primary care (or mental health) health professional shortage area (HPSA) or medically underserved area/population (MUA/MUP);     Determine if the location is in a shortage area
• IMG must agree to serve for no less than three(3) years;
• States have the flexibility to allow up to ten of their 30 physicians to work in an area not designated as a HPSA or MUA/MUP provided it can be demonstrated that the sponsoring facility serves individuals residing in underserved areas (“flex slots”);
• States may allow specialists if it can demonstrate a shortage of physicians practicing in that specialty (varies state by state);
• Must be a written contract between the sponsoring facility and the physician;
• IMG must begin practice within 90 days of approval of the waiver by USCIS;
• IMG must sign a statement that he or she has not applied for another Conrad slot in another state;
• If the IMG’s medical education was funded by the IMG’s home country, then that country must provide a no-objection statement to the physician’s U.S. employment;
• IMG must sign a statement that he or she understands the policies of the J waiver program, will comply with those policies, and that all statements in the application are accurate;
• The sponsoring facility must demonstrate unsuccessful efforts to recruit for the physician vacancy to be filled by the IMG

Outline of Steps to Apply for a Conrad 30 Waiver

• Obtain a case number from Department of State by submitting a DS-3035 with fees (if prior Waiver applied for same case number is used);
• Contact State Program Administrator for that state’s requirements including flex slots, slots for specialists, site visit requirement, pre-approval, filing window, filing fees, historical usage of numbers, procedures, reporting requirements after approval, minimum wage requirements;
• Confirm sponsoring facility is in a designated underserved area;
• Submit application and supporting documents;
• H-1B Petition submitted to USCIS with supporting documents after DOS has issued their favorable recommendation on the Conrad 30 waiver – must include prevailing wage, licensure and all other IMG credentials.
• Conrad 30 physicians on an H-1B are exempt from the statutory quota of H-1B’s

Factors Considered By States Receiving >30 Applications

• HPSA Score
• Community type – urban vs. rural
• Type of facility – federally qualified health centers, non-profits, rural health clinics, state-funded institutions and critical care facilities, “Safety net” providers (significant level of care to the uninsured, Medicaid and other vulnerable patients)
• Percentage of care to Medicaid and uninsured patients, service fees charged
• Access to services – wait time, other physicians in the area providing the same service
• Physician’s fluency in a foreign language

O-1 – Extraordinary Physicians

• Available to physicians with significant achievements in their field who have sustained national or international acclaim and can satisfy 3 of the 10 criteria listed in the regulations;
• Often used for J-1 subject physicians without a waiver;
• J-1 subject physician cannot change status in the U.S.
• O-1 can be used for academic or clinical appointments – typical scenario is an academic medical center (purely clinical position will hinge on reputation of the physician and the practice group in the field)
• Employer-specific so may need multiple O-1’s if multiple appointments
• Valuable if physician lacks credentials for an H-1B (e.g. USMLE), has hit the six year cap on H-1B or has not yet obtained a waiver
• IMPORTANT: O-1 status does not eliminate the need for a waiver, merely postpones it and a waiver is still required for a later H, L or green card.

IMMIGRANT Options – The Path to a Green Card

1. Traditional labor certification – pitfalls in being “permanent” if filed during internship, residency or fellowship but still reasons to file
2. Extraordinary ability – high standards and requires “sustained” acclaim in the field
3. Schedule A Group II – international reputation, significant achievements without “sustained” acclaim but category is not as favorable as extraordinary ability
4. EB-2 national interest waiver – after “Schneider” and USCIS Memo.  The statute states that an I-140 SHALL BE GRANTED TO ANY PHYSICIAN WHO WORKS 5 years in medically underserved or VA facility, but USCIS made this increasingly restrictive through regulation.  Schneider was a 9th Circuit Court case filed by several physicians successfully challenging regulations as exceeding scope of the statute.  USCIS then issued a memo implementing the results of this decision on a national basis.

• Applies to all physicians including specialists
• I-485 can be filed any time but won’t be approved until five years completed
• Can have multiple employers but each must file their own I-140 (Priority Date is recaptured)
• Time in any status except J will count toward the 5 years of service
• Public interest certificate required from state public health agency – rules vary state by state but many require this be issued 6 months prior to filing I-140
• Periodic review by USCIS at end of 2nd and 6th years to evaluate qualifying employment and progress toward 5 years of service
• Contract and sworn statement required.

This guide is provided for information purposes only and does not represent legal advice. For detailed information and advice relating to your individual case, please contact an attorney.