Physicians

According to recent reports, there is a serious shortage of doctors in the United States. It is predicted that by year 2020, the deficit in physicians will reach 200,000, owing largely to the aging baby boom generation and the Affordable Care Act.

Foreign medical graduates or FMGs (foreign national physicians trained in any country other than the U.S. or Canada) who work in the U.S. on a temporary or permanent basis help alleviate the shortage because many of them work in underserved and poor communities and in rural areas where the lack of doctors is more evident.

NON-IMMIGRANT VISA OPTIONS

J-1 Exchange Visitor Program

The J-1 exchange visitor visa is a temporary non-immigrant visa that allows FMGs to engage in graduate medical training in the United States.

FMGs may engage in either clinical or non-clinical training. FMGs in clinical training programs where they will engage in direct patient care must seek sponsorship from the Educational Commission for Foreign Medical Graduates (ECFMG), the only agency authorized to sponsor physicians for J-1 status. Non-clinical programs, on the other hand, involve no patient care or contact by the physician, or there is patient contact but it is only incidental to the physician’s primary activity of teaching, research, consultation or observation. There are many hospitals and training institutions authorized to sponsor FMGs in non-clinical programs.

To be eligible for a J-1 visa as a physician, the FMG must obtain a certification from the ECFMG. This in turn means that the FMG’s credentials have been reviewed and that the FMG has passed the following exams:

US Medical Licensing Examination (USMLE) Step 1
USMLE Step 2CK (Clinical Knowledge)
USMLE Step 2CS (Clinical Skills)

For purposes of qualifying for a J-1 visa, prior passage of old exams such as the National Board of Medical Examiners (NBME), the Foreign Medical Graduate Examination in the Medical Sciences (FMGEMS), the Visa Qualifying Examination (VQE), may be used.

The FMG must also pass the ECFMG-administered English language exam and submit a statement of need from the Ministry of Health of the FMG’s country of nationality or most recent legal permanent residence, stating that the country needs specialists in the area in which the J-1 visa applicant will receive training and that he/she will return to the country upon completion of the program.

The FMG must also find a hospital that would accept him/her into its residency program. One of the requirements is a contract or official letter of offer for a position in an approved graduate medical education or training program.

The ECFMG will issue a DS-2019 to the sponsored applicant, who may obtain J-1 status in the United States through a change of status, or at the U.S. embassy or consulate in his/her home country if he/she is outside of the United States. The FMG on J-1 visa may be accompanied by a spouse and unmarried minor children on J-2 visa status.

The duration of the FMG’s stay is limited to the time required to complete the advance medical education program and in no case longer than seven years.

Unless a waiver is obtained, FMGs on J-1 status are subject to a two-year foreign residence requirement, i.e. they must return to their home country or country of last residence for a period of at least 2 years before being eligible to a change or adjustment in their visa status. To get a waiver, the FMG may claim possible persecution in the home country, or exceptional hardship to a U.S. citizen spouse or child. However, the common way to get a waiver of the home residence requirement is through the request of an interested government agency (IGA), which could be a federal agency (such as the Veterans Administration, the U.S. Department of Health and Human Services and the Appalachian Regional Commission) or a state health department through the Conrad State 30 Program.

The Conrad program allows each state to sponsor up to 30 physicians for the J-1 waiver per year. Each State has its own regulations which may change from year to year but, as a rule, under this program waiver must be in the public interest and the FMG must agree to be employed full-time for a minimum of three years in an area that has been designated as an underserved area.

The waiver request is made on behalf of the physician by the IGA or the State health department, as the case may be. The application is submitted to the Waiver Review Division of the Department of State which will issue a favorable recommendation and forward it to the USCIS Vermont Service Center for adjudication.

If granted, the waiver only waives the home residence requirement and does not by itself grant authorization to stay or work in the United States. The J-1 physician must change status to H-1B or obtain a non-immigrant visa from abroad.

H-1B Temporary Worker

The H-1B visa program allows foreign workers in specialty occupations to stay and work in the United States on a temporary basis. Since the H-1B visa allows “dual intent”, the FMG is allowed to seek lawful permanent resident status while on the visa.

A “specialty occupation” requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation in the U.S. Physicians are clearly in a specialty occupation.

Medical residency programs may sponsor FMGs for an H-1B visa. To qualify, the FMG must be ECFMG certified, i.e. he must have passed USME Steps 1 and 2. In addition, he must also have passed USMLE Step 3. The Step 3 exam is administered by state licensing boards in the U.S. unlike Steps 1 and 2 which are administered by ECFMG. The FMG may also be ECFMG certified if he has passed older exams, such as the NBME Parts 1-3 and passed the ECFMG-administered English language test.

Additionally, to be eligible for H-1B the FMG must be licensed to practice in the state where he/she intends to train or practice.

The H-1B petition begins with a Labor Condition Application filed with the Department of Labor stating, among other things, that the FMG is being offered the prevailing wage for the occupation. The employer must file Form I-129 with the USCIS and pay the filing fee.

The FMG may change status if in the United States or obtain the H-1B visa at a U.S. consulate abroad. The petition is subject to the annual cap. However, universities and affiliates as well as non-profit government research institutions are exempt from the cap.

The spouse and any unmarried children under 21 can accompany the FMG on H-4 dependent status which, however, does not authorize employment in the United States. Unless the FMG is sponsored for permanent residence, he/she may remain in H-1B status for a maximum of 6 years.

O-1 Extraordinary Ability Physician

An O-1 visa is possible for physicians of extraordinary ability or those who have risen to the very top in their field. To qualify for an O-1 visa, the FMG must demonstrate extraordinary ability by giving evidence of national or international acclaim and recognition. This visa can be used for a residency program since FMGs must participate first in a residency program in order to obtain a state license. The O-1 visa is not subject to an annual cap.

IMMIGRANT VISA OPTIONS

First Employment-Based Preference

FMGs who either have extraordinary ability or are outstanding professors and researchers may qualify for a green card under the EB-1 priority worker category where visa numbers are readily available. Labor certification is not required for applicants who qualify under the EB-1 category.

Extraordinary Ability Aliens

FMGs who have received national or international acclaim and can establish extraordinary ability may qualify for a green card under this category. Not only is the FMG exempted from labor certification, there is also no need for a job offer from a U.S. employer if the FMG will continue work in the field in which he has extraordinary ability. In that case, the FMG may “self-petition” or file Form I-140 himself.

The level of ability or expertise required indicates that the individual must be one of those few who have risen to the top of the field of endeavor. The foreign national must give proof of having won a major internationally recognized award or evidence falling under three out of ten regulatory criteria, which include:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence
Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts
Published material about the alien in professional or major trade publications
Evidence that the alien is a judge of the work of others in the field
Evidence of the alien’s original contributions of major significance to the field
Authorship of scholarly articles
Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation
Evidence that the alien commands a high salary in relation to others in the field

Outstanding Professors or Researchers

FMGs may also qualify under the EB-1 category as outstanding professors or researchers if they are recognized internationally as outstanding in a specific academic field and have at least three years of teaching or research experience in the field. Documentation of at least two of the following types of evidence must be submitted:

Receipt of major prizes or awards for outstanding achievement
Membership in associations that require their members to demonstrate outstanding achievement
Published material in professional publications written by others about the alien’s work in the academic field
Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
Original scientific or scholarly research contributions in the field
Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Unlike extraordinary ability aliens, there is a job offer requirement under this category. The employer must offer the FMG a tenured or tenure track teaching or research position in the alien’s field, as the case may be, or a research position having no fixed term and in which the employee will ordinarily have an expectation of permanent employment.

For this category, the employer may be a university, institution of higher learning, or a department, division, or institute of a private employer if it employs at least three persons full-time in research activities and has achieved documented accomplishments in an academic field. It is also possible to offer a comparable position where the employer employs at least 3 full-time researchers and has demonstrated accomplishments in the research field.

Second Employment-Based Preference

The most commonly availed of classification is the second preference (EB-2). Except for nationals of certain countries, there are shorter waiting periods for an immigrant visa under this category compared to the third preference category (EB-3). There are two sub-groups under EB-2:

Advance Degree Professional

A foreign-born physician may qualify for an immigrant visa under EB-2 on the basis of his or her advanced degree. The employer must show that that the FMG: (a) is a member of the professions possessing an advanced degree or a foreign equivalent degree; (b) met the minimum education, training and experience for the permanent physician position, and has or is eligible for a full and unrestricted license to practice medicine in the state of intended employment; and (c) is not subject to the inadmissibility ground relating to “unqualified physicians”.

The employer must first go through the labor certification process and demonstrate that it is unable to find a U.S. physician for the position. This requirement may be avoided if it can be shown that the FMG’s employment is in the national interest (national interest waiver).

After the labor certification application is approved by the Department of Labor, the employer will file the I-140 petition along with the filing fee. Among the documents required to be submitted are the following:

Evidence of passing NBME Parts I and II, or equivalent exams such as the Foreign Medical Graduate Examination in the Medical Sciences (FMGEMS), VQE, and USMLE Parts 1 and 2

Evidence of passing the ECFMG English test

Physicians who entered the U.S. before January 9, 1978 and has been practicing since that time may obtain a green card as a Special Immigrant Physician.

Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

A national interest waiver (NIW) allows the physician to get around the labor certification requirement. In order to qualify, the individual seeking NIW must be seeking employment in an area of substantial intrinsic merit, the proposed benefit must be national in scope, and it must be shown that the national interest would be adversely affected if a labor certification were required. Physicians must be in full-time clinical practice usually for a period of five years. Generally, they must practice in a medically underserved area and in a primary care specialty.

Physician of Exceptional Ability

FMGs who can demonstrate exceptional ability, or those who have a degree of expertise above that ordinarily encountered in his or her field, are also qualified for EB-2 classification.

In addition to the credentialing requirements for FMGs, at least three of the following types of evidence must be submitted:

Official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability

Letters documenting at least 10 years of full-time experience in the occupation
A license to practice the profession or certification for the profession or occupation
Evidence that the alien has commanded a salary or other remuneration for services that demonstrates your exceptional ability
Membership in a professional association(s)
Recognition for achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Other comparable evidence of eligibility

Physicians of exceptional ability may also seek a NIW to bypass the labor certification requirement.