THE ABC’S OF IMMIGRATION – NONIMMIGRANT OPTIONS FOR FOREIGN MEDICAL GRADUATES

One of the more controversial and complicated areas with which immigration attorneys have to deal is in advising foreign medical graduates ("FMGs")seeking temporary work visas in the United States. The laws governing this subject have changed a number of times in recent years and the medical profession imposes many of its own requirements which must be met before work in the US is permitted.

As the law now stands, there are five types of nonimmigrant visas that are generally available to FMGs - the H-1B visa for specialty occupations and the J-1 exchange visitor visa (the most common), the O-1 visa for doctors with extraordinary ability, the TN visa for Canadian and Mexican doctors and the E-2 Treaty Investor visa.

H-1B Visas

H-1B visas are granted for up to three years and may be extended for up to three more years. After these six years, the H-1B is required to leave the US for a year. A key benefit of the H-1B visa is that the doctrine of dual intent applies and an outstanding petition for permanent residency is not a ground for denying the visa. If the FMG is coming to the US to teach or to perform research and only incidental patient care is involved, the FMG will have to show that he/she has received a medical education and is licensed in his/her home country and that an appropriate license has been received by the state where the applicant will be working if patient care will be performed. The other H-1B option is open to persons seeking to engage in a clinical practice or engage in graduate medical training. Such persons generally must meet a number of requirements including the following:

1. Passage of an appropriate credentialing exam. These would include the Federation Licensing Examination (FLEX)(parts I and II), the National Board of Medical Examiners certifying examinations (NBME)(Parts I, II and III) and the United States Medical Licensing Examination (USMLE)(steps 1, 2 and 3). Note that combinations of parts of different examinations will not suffice;

2. Proficiency in English demonstrated by passing the English test of the Educational Commission for Foreign Medical Graduates (ECFMG);

3. A full and unrestricted license to practice medicine in a foreign country or graduation from a foreign medical school; and

4. A license or other authorization to practice medicine in the state where the doctor will be working.

Note that the first three requirements noted above do not apply to doctors who graduate from medical schools in the United States. Such doctors only need to show they have graduated from a US medical school and that they possess the appropriate state license. Also, the first two requirements above are waived for doctors who are of national or international renown in their area of specialization and who have graduated from a foreign medical school.

For all doctors applying for H-1B visas, the basic requirements for that visa still apply - the position must pay the prevailing wage, the employer must file a Labor Condition Application, the employer must file an I-129 form with the INS, etc.

Until early 1992, only persons accepting teaching and research positions could pursue the H-1B visa (although incidental patient care was permitted). That changed when Congress lifted the bar on granting H-1B visas to FMGs seeking to engage in a clinical practice or graduate medical training. In the mid-1990s, the INS attempted to re-impose the prior rule limiting H-1Bs only to teachers or researchers on the grounds that Congress did not intend to permit physicians to choose between J visas and H visas. The House of Representatives committee overseeing the INS did not agree and the INS appears to have backed off its proposal. So the more liberal rules allowing H-1B visas for physicians still remain.

J-1 Visas

Another nonimmigrant option available to physicians, as noted above, is the J-1 Exchange Visitor's visa. This is available to persons seeking to teach, research or train in the US. To qualify for a J-1, a physician must find an exchange program to sponsor him or her for the visa. For physicians engaged in research or non-clinical activities, there are many potential sponsors including universities and private corporations. The sponsor must have a J-1 program in place that has been approved by the State Department.

FMGs involved in residency programs must be sponsored by the Educational Commission for Foreign Medical Graduates). Unlike the H-1B visa, J-1 doctors in residency programs must meet only two basic requirements - J-1 sponsorship and passage of Steps 1 and 2 of the USMLE.

From the employer's point of view, the J-1 visa is much easier. There is no Labor Condition Application to be filed with the US Department of Labor, there is no prevailing wage requirement, the INS does not need to give pre-clearance and the visa can be approved quickly. Also, there is an annual cap on H-1B visas and many physicians are unable to secure an H-1B visa in time to begin a residency program. Doctors match for residency programs in March and then must have the visa in place by the residency start date in July. In 2000, for example, this would have been very tough because to meet the quota, an H-1B petition would have had to be filed by March 21st. That allowed virtually no time to submit the H-1B application for a July start date.

There is a serious downside to the J-1 visas for doctors. Doctors entering to do graduate medical training are subject to a requirement that he or she return to his or her home country for at least two years before he or she is eligible to

·        Apply to change status from J-1 to any other non-immigrant status (it is still okay, for example, to apply for a B-2 visitor visa at a consulate)

·        Apply for an H or L non-immigrant visa (though some lawyers say an exact reading of the law allows one to reenter the US on another visa and then apply for a change of status to an H or L visa from within the US since a visa stamp would not be necessary)

·        Apply for permanent residency

To avoid the two year requirement, an FMG must seek a waiver on the ground that the home residency requirement (the "HRR") would result in exceptional hardship or persecution or that an interested US government agency or state health agency has formally requested the waiver. The hardship and persecution tests have proven to be extremely difficult to pass. Even marriage to a US citizen and the existence of US citizen children are not necessarily enough to meet the hardship standard. And persons seeking to show persecution will normally have an easier time simply filing for asylum.

The interested government agency option has proven popular in recent years as many government agencies have used the HRR waiver in order to fill needed primary care positions in rural and impoverished areas or to further important research objectives. A number of agencies now grant such waivers. The Department of Veterans Affairs, the Appalachian Regional Commission and the US Department of Agriculture are the federal agencies that most often issue waiver letters for doctors wishing to do clinical work, though any agency is theoretically allowed to recommend a waiver. Under a law passed by Congress in 1994, state health agencies also may apply for up to twenty waivers a year for physicians to work in underserved areas.

Many states now have waiver programs. For a state to seek a waiver, the state's department of public health must show that the FMG will commit to three years, the FMG will begin work within 90 days of being granted the waiver, the FMG will work in a Health Profession Shortage Area and the FMG has received a no objection letter from his or her home country's government (if the FMG had a contract with the home government requiring his or her return).

There are no uniform procedures for applying for waiver letters with these agencies. Each has its own rules and some have review boards. Some require that the FMG agree to perform primary health care in a geographic area which is underserved or that the FMG be working in a program where the FMG's presence is critical to the program's future. Others focus on the importance of medical research. Some require evidence that recruitment efforts for the position have been unsuccessful.

In 1996, Congress imposed new requirements as well on J-1 waivers. Physicians getting waivers to perform work in underserved areas must now make commitments of three years and must be in H-1B status for three years in their waiver positions. Failure to meet the commitment without an extraordinary reason could result in the home residency requirement being re-imposed. Others require minimum time commitments.

O-1 Visas

The O-1 visa is a temporary work visa available to those foreign nationals who have "extraordinary ability in the sciences, arts, education, business or athletics" which "have been demonstrated by sustained national or international acclaim."  Physicians with significant accomplishments in their fields may want to consider this category. The person entering the US must be coming to work in their field of ability, but the position need not require the services of a person of extraordinary ability. 

Extraordinary Ability in Science, Education, Business or Athletics

To obtain an O-1 visa to work in the sciences, education, business or athletics, applicants must demonstrate that they possess "a level of expertise indicating that the person is one of the small percentage who have risen to the top of the field of endeavor."  There are two ways to demonstrating this expertise.  One method is through receiving a major internationally recognized award such as a Nobel Prize.  The more common way is by providing documentation in three of the following categories:

·        Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor

·        Membership in associations in the field which require outstanding achievements of their members

·        Published material about the alien

·        Participation as a judge of the work of others in the same or allied fields

·        Evidence of original contributions of significance in the field

·        Authorship of scholarly articles

·        Evidence of employment in a critical or essential capacity for organizations with a distinguished reputation

·        Evidence that the alien has or will command a high salary

Comparable evidence that does not fit within these categories may also be submitted.

Before a person will be granted either an O-1 visa, the INS requires a consultation with a US-based organization.  For O-1 applicants, the petition must include an advisory opinion from a peer group, labor union, or person with expertise in the applicant's field.  This opinion can either state simply that the group has no objection to issuing the visa, or can detail the applicant's achievements.  If the achievements are detailed, the letter should also address the applicant's ability, the nature of the position offered, and whether the position requires a person of extraordinary ability.  For doctors, a letter from an organization of doctors in the applicant's field of specialization should do. A new consultation is not required when seeking an extension of any O visa. 

The form for petitioning for an O visa is the I-129.  This must be submitted along with the consultation opinion, evidence documenting the alien's extraordinary ability, and details of the proposed work in the US.  The petition is to be approved for the duration of the event in which the alien will participate, for a maximum of three years. 

An O visa may be extended in one-year increments for an indefinite period of time.  Form I-129 is also used to file for an extension.  The application for an extension does not need to include a consultation, and requires only a statement of why the extension is sought. 

Finally, O visas are what are known as "dual intent visas", meaning that even though the applicant has filed a labor certification or petition for classification as a preference worker leading to permanent residence, the O visa cannot be denied. 

TN Visas

The TN nonimmigrant visa was created after the passage of the North American Free Trade Agreement (NAFTA) in 1993.  The agreement eased trade restrictions between Canada, the US and Mexico, and called for some new immigration rules. Certain Canadian and Mexican doctors may apply for TN visas to work in the US.

The TN visa is similar in requirements to the H-1B visas, although it has both substantial benefits and drawbacks to that visa category.  The ways in which a TN visa is more advantageous than an H-1B are as follows:

·        TN visas are not subject to an annual cap

·        TN visas can be renewed indefinitely

·        TN visas cover a broader range of job descriptions, which will be detailed later in this article

·        There is no prevailing wage requirement for TN visas

·        Canadian citizens can obtain a TN visa at the border, meaning there is no wait for the visa

·        A TN visa can be obtained by a person who has held H-1B status for the full six years without fulfilling the requirement of spending one year outside the US, a requirement that must be complied with before obtaining other nonimmigrant work visas

While these advantages makes the TN visa seem an ideal substitute for the H-1B for Canadian and Mexican citizens, there are some drawbacks that must be considered, such as:

·        Unlike H-1B visas, the TN visa is not a "dual intent" visa.  That is, where a person on an H-1B visa may pursue permanent residency without having their visa revoked because they now have immigrant intent, a person on a TN visa cannot pursue permanent residency without risking their TN status. 

·        Experience cannot be used as a substitute for the degree requirement

·        A TN visa can be denied if the Department of Labor certifies that there is a strike or other work stoppage, the resolution of which would be adversely affected by the admission of the TN nonimmigrant

TN visas provide for the admission of those who will be engaged in "activities at a professional level" in the US.  "Activities at a professional level" are defined at those that require at least a bachelor's degree or credentials and experience demonstrating that the person is a professional.  Self employment is not permissible on a TN visa, but the TN visa holder can work for a company in which they have an ownership interest, even a controlling interest. 

Both the NAFTA treaty itself and INS regulations specify which professions qualify for TN status. Physicians are on the list of professions, but the statute limits the category only to physicians engaged in research or teaching. Clinical work would not be appropriate for the TN visa.

To obtain a TN visa, the following documentation must be collected:

·        A letter from the prospective employer

·        Diplomas (if the degree is from Canada or Mexico, it must be evaluated)

·        Licenses and professional memberships, if applicable

A letter should also be submitted that outlines the following:

·        The nature of the professional activity in which the visa holder will be engaged

·        The proposed length of stay

·        The beneficiary's educational credentials

·        That the beneficiary has a state or provincial license or an M.D. 

·        Arrangements for the beneficiary's salary

Canadian citizens (landed immigrants do not qualify for TN visas) can present this documentation at a port of entry or preclearance station at an airport.  They do not need to present a petition approved by the INS, or a labor condition application.  They will be given an I-94 valid for multiple entries over one year.  Once in the US, the TN visa holder can apply for an extension at the Nebraska Service Center, which is also where application to change status to TN are filed.  A new application is not required for a change in the place of employment, but is required for a change of employer.

The procedures are different for Mexican citizens.  The employer must apply for a TN visa at the Vermont Service Center, and must present a labor condition application, or if the visa is for a nurse, a labor attestation.  While Canadians can extend the TN visa indefinitely, TN visas for Mexicans are limited to one year.  There is also an annual limit of 5,500 TN visas that can be issued to Mexican nationals.  Mexicans must obtain the TN visa at a US consulate, because they cannot seek one at the border like Canadians can.  Spouses and children of TN visa holders are given TD visas.  Work is not authorized under a TD visa.  TD visa holders are, however, allowed to attend school.

E-2 Visas

For some doctors interested in setting up their own practices, the E-2 visa might be considered. Aside from the visa requirements below, a physician would also need to meet the appropriate licensing requirements for the state of intended practice. There is no requirement, however, that the E-2 physician have passed the FLEX or USMLE.

E-2 Treaty Investor visas are available to persons entering the US "solely to develop and direct the operations of an enterprise in which he has invested, or is actively in the process of investing, a substantial amount of capital."  E-2 non-immigrant visas are available to foreign-owned businesses if the home country of the business owners has a treaty with the US that allows American businesses to operate in that home country. At least 50% of the ownership of the enterprise must be in the hands of nationals of a country with which the US and the home country have a ratified bilateral investment treaty.  Employees of the enterprise who are working in management, executive or "essential" positions are eligible for the visa if the ownership breakdown meets the above test, and the employee is a national of the treaty country.  Some of the most important requirements for an E-2 visa include the following:

·        The investment must be active, not passive.  This means that the money invested must be used to produce a real commodity or service.  For example, an investment in land would not be considered active, but if the investment was accompanied by submission of development plans to authorities and contracts for building, it would be active.  Both the INS and State Department allow the use of an escrow account to protect the applicant in case the visa is denied, but other evidence showing the investment will be active must be presented. The investor must manage the business and exercise a controlling interest in the business.

·        The investment must be substantial.  While "substantial" is not defined by any particular dollar amount, both the INS and the Department of State use one of two tests to see if this requirement is met.  They require either that the amount invested be proportional to the total value of the business, or that it be an amount typically considered necessary to establish a viable business in the field.  The INS and State Department sometimes use a sliding scale that they are allowed to reference in determining whether an investment is "substantial."

·        If the value of the business or the cost to start it is less than 0,000, a minimum 75% investment is required.

·        If the value of the business or the cost to start it is between 0,000 and $ 3 million, a minimum 50% investment is required.

·        If the value of the business or the cost to start it is over million, a minimum 30% investment is required.

·        The investment cannot be marginal. The State Department will look at whether the investment will generate more funds than just enough for the owner to make a living and whether the investment will create jobs.

The E-2 visa applicant must have nonimmigrant intent - that is, they must intend to depart the US after their authorized period of stay is over.  However, unlike other most other nonimmigrant visa categories, this requirement can be met if the alien simply provides the consulate with a statement indicating non-immigrant intent.

Applications for E-2 visas are made directly to the consulate and not through the INS unless the applicant is in the US in another visa status and seeks to change to an E-2 visa.  Each consulate has its own version of an E visa questionnaire form and most require extensive documentation to support application.  The length of time for which the visa will be issued is determined by agreements between the US and the treaty country.  Visas may not be issued for more than five years, but they may be renewed continuously without a limit on stay in E-2 status.  Spouses and children of E-2s are entitled to visas as well.  E-2 family members are not subject to deportation proceedings because they accept employment, but they will be considered out of status and ineligible to change or adjust their visa status in the US.  There are no restrictions on family members pursuing studies while in E-2 status, however.

The following countries have ratified investment treaties with the US and their nationals can apply for E-2 status:

Argentina

Australia

Austria

Armenia

Bangladesh

Belgium

Bosnia

Bulgaria

Canada

Cameroon

China (Taiwan)

Colombia

Colombia

The Congo

Costa Rica

Croatia

Czech Republic

Egypt

Ethiopia

Estonia

Finland

France

Germany

Grenada

Georgia

Honduras

Iran

Ireland

Italy

Japan

Jamaica

Kazakhstan

Korea (South)

Kyrgyzstan

Liberia

Luxembourg

Macedonia

Mexico

Moldova

Morocco

Netherlands

Norway

Oman

Pakistan

Panama

Philippines

Poland

Romania

Senegal

Slovakia

Slovenia

Spain

Sri Lanka

Suriname

Sweden

Switzerland

Thailand

Togo

Trinidad & Tobago

Tunisia

Turkey

Ukraine

United Kingdom

Zaire

Bilateral investment treaties have been signed with the following countries, but have not been ratified by Congress:

Azerbaijan

Belarus

Croatia

Haiti

Honduras

Jordan

Lithuania

Mozambique

Nicaragua

Russia

Uzbekistan