Immigration Options for Foreign Physicians
(“Foreign Medical Graduates”)
November 15, 2010
Immigration Options for Foreign Physicians (“Foreign Medical Graduates”)
Especially in this area of the country, the shortage of U.S. physicians means the population relies heavily on the skills of foreign medical graduates (FMGs) to meet its needs for quality medical care. The following is an overview of the common immigration options currently available to foreign physicians and their prospective employers to allow them live and work in the U.S. It is intended as a basic overview for Human Resource professionals and recruiters working in healthcare, as well as foreign physicians themselves.
H-1B Status
A fair number of FMGs now come to the U.S. to do post-graduate training in H-1B status. Once that training is complete, these physicians are generally eligible to transfer their H-1B status from their residency or fellowship program to a hospital or private practice employer. The basic requirements physicians must satisfy to obtain or continue in H-1B status include:
• Passage of USMLE 1, 2, 3 or equivalent;
• ECFMG certification;
• Licensure in the state of intended employment.
Physicians who have never trained in the U.S. often have not completed the USMLE exams, which eliminates H-1B status as an option unless the physician is of “national or international renown.” This poses an issue for many Canadian physicians, who may have other options available such as pursuing permanent residence in the U.S. Unfortunately, TN status as a Canadian citizen is not an option as clinical care is prohibited by physicians in TN status.
As physician is clearly an H-1B caliber position, the main issue employers often face in securing H-1B status in a timely manner is state licensure. In Maine, the processing time for a permanent medical license is generally 3 to 4 months, assuming the physician has not already completed the credentialing process through FCVS. As state licensure is a prerequisite to H-1B status, starting the application process for licensure as soon as possible is wise. Maine generally requires 36 months of accredited post-graduate training before a physician is eligible for full licensure, so the license may not issue until shortly before the third year of training is complete. For those physicians who are fully licensed in another state, a temporary license may be a quicker interim option, assuming the employing institution can demonstrate a need for the physician’s services. However, a temporary license could mean the H-1B status will initially be limited to a one-year period as opposed to the usual three-year period.
Another consideration is the H-1B cap. Most post-graduate training programs in the U.S. are operated by institutional employers who are exempt from the H-1B cap. Accordingly, where a FMG who is already in H-1B status moves from a cap-exempt program to a private practice, the H-1B cap can come into play. Most hospitals which are affiliated with U.S. colleges or universities are exempt from the cap.
J-1 Waivers
While not an immigration status in and of itself, FMGs often need J-1 waivers in order to remain in the U.S. and work. Many FMGs attend U.S. post-graduate training programs in J-1 status through sponsorship by the Educational Commission on Foreign Medical Graduates or ECFMG. With J-1 status comes a requirement that physicians return to their home country for two years before they may obtain H-1B status or permanent residence in the U.S. However, through the Conrad 30 program, these physicians may obtain waivers of this two-year home residence requirement by working in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) for a three-year period. To find out whether a hospital or practice is located in such an area, consult the HRSA website at: Maine also links to these resources. Five of the 30 slots are reserved for institutions which are not physically located in these areas, but rather serve patients from such areas.
Physicians who obtain such a waiver currently must work in H-1B status, work full-time (average at least 40 hours per week), and start employment within 90 days of final waiver approval by USCIS. The VA system also sponsors waivers apart from those in underserved areas. Although specific Conrad 30 waiver requirements vary by state, the sponsoring institution must demonstrate that it has been unsuccessful in its efforts to recruit a U.S. physician, typically during the 6-month period preceding application. Usage of the 30 waiver slots differs by state. As an example, Maine typically does not use all of it is allotted 30 waiver slots, but rather uses 25 or so each fiscal year.
Failure to complete the 3-year waiver commitment means that the 2-year home residence requirement reattaches. That said, if the physician can demonstrate “extenuating circumstances” which excuse failure to complete the commitment with the sponsoring institution, along with an offer of employment from another qualifying institution, they may be able to preserve the waiver and continue working to fulfill the remaining waiver commitment.
O-1 Status
Where the H-1B cap is an issue, or if the physician for some reason does not want to immediately pursue a J-1 waiver, O-1 status as an alien of extraordinary ability may be an option. The qualification threshold is higher than that of an H-1B, but it remains an option for those who are highly qualified.
Other nonimmigrant options such as E-2 status may also be available, although they are not as common as those identified above.
Permanent Residence (Green Card)
There are a number of bases on which a foreign medical graduate may pursue permanent residence in the U.S.
Labor certification (“PERM”)-based petition (EB-2)
The most common way of obtaining permanent resident status through employment is through the labor certification-based green card process. This process requires that the sponsoring institution first advertise for minimally qualified U.S. physicians. Oftentimes, it makes sense for institutions which sponsor the physician for a J-1 waiver to start the first stage of this green card process shortly after hire, as they may be able to use the same advertising in support of the green card application. Although those physicians completing their 3-year J-1 waiver commitments may not apply to adjust status until the end of the 3-year commitment, their sponsors may file PERM applications on their behalf before then so they are ready when they are eligible to adjust. NOTE: Private practices need to be careful in offering buy-in to foreign physicians who are pursuing labor certification. It is more of a timing issue, but it is often a consideration for smaller practices.
National Interest Waiver (EB-2)
There are two types of NIWs available to foreign medical graduates. One NIW entails a 5-year commitment to work in an underserved area, similar to a J-1 waiver. The second type of NIW has no specific time commitment, and is based purely on a determination that the physician’s service is in the national interest. The latter type is generally more difficult to obtain and is generally pursued by those involved in research.
Those NIWs based on a 5-year commitment usually make more sense for physicians who are already satisfying a 3-year J-1 waiver obligation, as that time counts toward the 5-year commitment. For those physicians not already subject to the J-1 waiver commitment, the NIW entails a fairly long commitment. An NIW of this sort also may make sense where there are a higher number of U.S. applicants for positions, making a labor certification-based application less attractive. Finally, many foreign physicians like the NIW because it permits them to apply to adjust their status prior to completion of their 3-year J-1 waiver commitment, which enables them to obtain advance parole for purposes of international travel, but that usually should not be the primary reason for pursuing an NIW.
Extraordinary ability (EB-1)
Due to the current shortage of immigrant visa numbers for nationals of India and China, the EB-1 extraordinary ability classification is becoming increasingly popular as there is currently no visa shortage for the EB-1 category as there is in the EB-2 (advance degree professional) category. However, as the name implies, the standard is not easy to meet. For those with the requisite qualifications, it is an attractive option due to the immediate availability of immigrant visa numbers and because it allows for self-sponsorship and bypasses the labor certification requirement. Physicians should note that qualification as an O-1 nonimmigrant does not necessarily translate to qualification as an EB-1 Alien of Extraordinary Ability, although the standard would appear the same at first blush.
Final thoughts
In areas of the country with a shortage of healthcare professionals, foreign physicians who are often highly qualified can be a good option for supplementing existing medical staff and addressing unmet needs. Physician recruiters should familiarize themselves with the various options above as they will likely encounter situations where they will be sponsoring a foreign physician at some point. This is especially the case given the aging U.S. population and the limited number of U.S. medical school graduates. For those locations which qualify, the Conrad 30 program in particular is one of those rare government programs that is a proven winner. The program allows foreign physicians to waive a requirement in order to pursue permanent residence, and provides the sponsoring facilities with qualified personnel who will likely remain for a minimum of 3 years and hopefully beyond. Before jumping in, recruiters and sponsoring institutions which have never gone through the process should nonetheless evaluate whether sponsorship makes sense. Opening up the recruitment process to entertain J-1 waiver applicants translates into more CVs to review, but recruiters will likely find a pool of highly qualified applicants as a result.
Matt Raynes advises and assists hospitals, physician practices, and foreign physicians in navigating the immigration process and the demands of sponsorship, from obtaining J-1 waivers to permanent residence. He is experienced with the immigration process for physicians as well as the details of state licensure.
