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It is almost impossible for a foreign national who is not a U.S. permanent resident to attend a U.S. accredited medical school. Many graduates of foreign medical schools want to practice medicine in the United States and are willing to embark on what has become, since 1976, an increasingly labyrinthine and uncertain path involving overlapping credentialing, licensing, and immigration requirements to do so.
Most "international medical graduates" ("IMGs") wishing to practice medicine in the U.S. must complete a U.S. residency and Steps 1, 2, and 3 of the United States Medical Licensing Examination ("USMLE") or equivalent to become eligible for state licensing.
Historically, IMGs could only take part in the residency using the J-1 nonimmigrant visa classification under the sponsorship of the Educational Commission of Foreign Medical Graduates ("ECFMG"), which requires that they first pass USMLE Steps 1 and 2 or earlier equivalent and the Test of English as a Foreign Language ("TOEFL") and show that the skills they seek are needed in their home country. When they enter in J-1 status for graduate medical training, they become automatically subject to a statutory requirement that they return for two years to a foreign residence before changing to the types of immigration status that would allow the full practice of medicine (normally H-1B temporary status or permanent residence).
IMGs who can arrange to pass USMLE Step 3 and find a residency program that will allow participation as an H-1B, rather than as a J-1, can avoid the home residency requirement altogether and thus be free of obligations to work in underserved areas after residency. Increasingly, U.S. residency programs are undertaking the extra responsibility to sponsor residents in H-1B, and fewer and fewer residents are using J-1, even though that means the spouses cannot derive work authorization in J-2 status. Some people are concerned that this shift is drying up the pool of foreign physicians forced to work in underserved areas, as discussed below.
The crucial task for an IMG who has trained in J-1 status thus becomes seeking a waiver of this "home residency requirement." There are only four ways to waive the residency requirement: (1) show undue hardship to a U.S. citizen or permanent resident spouse or child if the alien were forced to comply with the requirement (rare); (2) show likelihood of persecution in the home country on the basis of race, religion, national origin, political opinion, or social group (i.e., asylum, also rare); (3) convince a U.S. federal agency to represent to the State Department, which oversees J-1 sponsorships (duties formerly handled by the USIA), and the U.S. Citizenship and Immigration Services (USCIS) that a waiver would be in the national interest; or (4) become one of 30 foreign medical graduates ("FMGs") that each state may sponsor for J-1 waiver each year. Thus, the federal "interested agency waiver" and the "State 30 waiver" (also known as the "Conrad 30") are popular projects for the relatively few immigration lawyers who are knowledgeable about the processes that must be juggled simultaneously to handle a case successfully.
Presently, the following agencies sometimes sponsor FMGs for J-1 waiver requests, generally for the purposes indicated:
- Veterans Administration (VA) care of veterans at a VA hospital, which need not be in an underserved area.
- Appalachian Regional Commission (ARC) usually primary care for indigents in counties under ARC jurisdiction.
- Delta Regional Authority (DRA) modeled after ARC program, primary care for indigents in counties under DRA jurisdiction.
- Department of Health and Human Services (DHHS)- primary care for federally designated heath centers, rural health clinics and native tribal facilities with HPSA score of 07.
- Department of Health and Human Services (DHHS), Education, and National Institutes of Health/Center for Disease Control high level research.
- U.S. Coast Guard, Army, Air Force for employees and their families.
- U.S. Department of Commerce emergency physicians, to prevent closure of emergency rooms.
- Department of Defense (DOD) DOD-funded research.
Each participating federal agency, and each state under the State 30 program, has a detailed set of written, and in some instances subtly unwritten, rules for its waiver program. Under most of these programs, the alien must have an employer and agree, with severe penalties for breach, to work for at least three years. In most programs the alien must practice primary care medicine (or in certain circumstances other shortage specialties) in H-1B status in a geographic area designated by DHHS as a health professional shortage area or Medically Underserved Area that the agency recognizes as still being underserved. Other peculiar requirements apply to each agency.
Once the interested agency or state recommends a waiver to the State Department, the State Department's Waiver Review Division normally submits a recommendation to the USCIS for a final decision on the waiver -- almost always approval.
If a waiver can be obtained, the prospective employer petitions the USCIS for the alien's H-1B temporary status for at least three years. The alien either changes to H-1B status within the U.S. or, if a status violation or overstay has occurred or if a trip abroad is convenient enough, obtains an H-1B visa at a U.S. consulate, possibly in a third country such as Canada or Mexico. Deciding when to file H-1B papers, and whether and how to request change of status or consular notification and/or premium processing, requires careful discussion between the immigration attorney, employer, and physician. The law requires that the alien agree to start work within three years of the waiver issuance, but as a practical matter the lag can be longer as long as the alien proceeds to the designated work promptly upon conclusion of training and acquisition of H-1B status.
In most cases the physician wishes to pursue permanent residence as expeditiously as possible after obtaining H-1B status, although the process can begin before H-1B approval or even H-1B filing. Usually this is done through one or both of two ways:
- The regular labor certification process involving a showing, through sufficient advertising, that there is no minimally qualified U.S. physician available. Upon approval the employer may file an immigrant petition, but the last step toward permanent residence may not begin until the three-year term of J-1 waiver service in an underserved area is completed and a visa number is available. This process need not involve the employer involved in the J-1 waiver service, but it usually does.
- A special variation on the "national interest waiver" under which the physician must work 5 years (which can include the 3 years for the J-1 waiver) providing primary or other federally designated shortage care (which may include specialties) in an underserved area with a letter from the state's department of health attesting to the public interest in the work. The physician may self-petition. Although the physician may, even before completing the 3 years of J-1 waiver service, immediately file for permanent residence with interim work and travel authorization, it may not be approved until the physician has worked for five years in the medically underserved area. This can be useful for obtaining the spouse's and children's work authorization.
Many Canadian schools and residency programs are recognized by U.S. credentialing and licensing boards. Thus, often they can waive in for H-1B status if they have USMLE Step 3 or equivalent. Even with USMLE Step 2 they can obtain permanent residence if their employer can show no U.S. workers available, "national interest" in the alien's immigration, or "extraordinary ability" of the alien. Some U.S. specialty boards, particularly in family practice, have severely limited reciprocal certification of Canadian-certified specialists and are now requiring a new U.S. residency to sit for specialty board exams.
There are other possible ways around the many problems for FMGs. Less onerous rules apply to non-clinical positions. Physicians of "extraordinary ability" can bypass many requirements. Some physicians even seek immigration status based on positions below their full capability, such as medical technologist. Physicians who immigrate through non-employment based categories, such as through close family relationships, may be able to avoid the home residency requirement and face only licensing requirements. The rigorous normal requirements certainly invite imaginative solutions.
How We Can Help
We represent a broad range of health care providers and physicians in the complex matters faced by immigrating physicians. We represent large research hospitals, small rural hospitals (and the entities that own them), nursing home entities, non-profit medical clinics, HMOs, physician groups, and of course foreign national physicians, throughout the United States. We help coordinate J-1 status compliance, obtain H-1B status where available, seek O-1 status in lieu of J-1 waivers where necessary, and coordinate family members' immigration status. We routinely assist with obtaining J-1 waivers through "Conrad State 30" programs of state health departments, through various federal agencies including HHS/NIH, ARC, DRA, and VA, and through hardship and persecution waivers. We pursue permanent residence through labor certification, national interest waiver, outstanding professor/researcher, and/or extraordinary ability categories. We have extensive experience pursuing the various credentialing, licensing, and immigration requirements physicians must meet, and we coordinate strategies to overcome the complex timing problems posed by these different requirements at their various stages. We have unique experience unraveling prevailing wage problems and contract issues that sometimes arise with small physician practices. In addition, we handle immigration of a large volume of other types of medical workers. When requested (i.e., when we have not been associated only as immigration counsel), we work with our firm's Health Law Group, one of the biggest in the U.S., on contractual, fraud and abuse compliance, and other issues that arise in physician-provider relationships.
Consult with us for assistance with a case.
Non-Physicians
Because of shortages of U.S. workers at different times and places in several occupations, particularly physicians, nurses, and physical and occupational therapists, immigration of alien health care workers has been significant and has received special attention by Congress and regulators for many years. The immigration of alien physicians is an extraordinarily complex topic discussed separately. Here we cover the practical prospects and procedures for arranging temporary and/or permanent immigration status for non-physician alien health care workers. The situation changes with the vacillating winds of labor shortages, regulatory rearrangements, labor representative initiatives, and congressional action.
I. Temporary Options.
Usually an employer wishes the alien to come to work promptly, and a temporary status can often be obtained more quickly than permanent residence, even if that is pursued later. All of the temporary options below are subject to the relatively new certification requirements discussed further below.
H-1B. The best temporary classification to pursue is usually "H-1B," which is only available when the position requires at least a bachelor's degree in a specific field and the alien possesses that degree or equivalent plus immediate eligibility for any required license to practice the profession in the state of intended employment. U.S. Citizenship & Immigration Services ("USCIS") has recognized that positions for chiropractors, dietitians, medical records librarians, medical technologists, nutritionists, pharmacists, physical and occupational therapists, and supervisory registered nurses (if a four year degree is actually required by the employer) usually meet these requirements.
The complex procedures and special rules for H-1B are discussed on a separate page. The biggest challenge at the moment is obtaining one of the 65,000 slots for new H-1B workers available each federal fiscal year. In true shortage occupations, it is manageable to maintain H-1B status for as long as it takes to obtain permanent residence which normally will be several to many years.
Trade NAFTA ("TN"). More streamlined processing is available to certain occupations for Canadian citizens under the North American Free Trade Agreement (NAFTA), which allows "TN" status to work for a specific employer on an annual basis for the following occupations when the candidate has the correct degree and/or license: dentist, dietitian, medical laboratory technologist, nutritionist, occupational or physical therapist, pharmacist, psychologist, recreational therapist, registered nurse, and veterinarian. The worker may obtain this status by entering the U.S. with evidence of Canadian citizenship, professional credentials such as degree or license, and a well-drafted letter from the employer describing the situation. Alternatively, the employer may file with USCIS a petition to change the status or employer of a worker already in the U.S. For details, see a separate discussion of TN.
H-2B. If the position is the subject of a truly temporary need and an unavailability of minimally qualified U.S. workers, "H-2B" status may be possible, after 3-6 months of processing, on an annual basis with a three year maximum. Proper use of the H-2B program is costly and difficult for the employer even when appropriate. It would only be appropriate for a facility whose census regularly fluctuates, such as a retirement home in South Florida whose census is high in the Winter and low in the Summer. Many recruiters claiming to use the H-2B program to bring in foreign health care workers have been unable to deliver. The bi-annual limit on the number of H-2B workers is routinely reached and requires careful planning as discussed separately.
Students on Practical Training. Many people who come to study in the U.S., and in some cases their family members, may obtain work authorization during or after their graduation. Persons in F-1 student status must obtain a USCIS employment authorization document (I-766) to work off-campus, and their dependents cannot work in F-2 status at all. Persons in J-1 status may present an I-94 card (reflecting validity ¿until D/S¿), unexpired IAP-66 form, and letter from the program sponsor authorizing the employment with the named employer. J-2 dependents must obtain a USCIS employment authorization document (I-766). The employer technically does not become involved in obtaining work authorization for a student, who deals directly with school and USCIS officials as necessary. More details are available in a separate discussion.
Other temporary visa classifications may be available in special situations, but they should be discussed specifically with immigration counsel if they arise.
II. Permanent Solutions.
When the employer is sponsoring a worker for permanent residence, it is usually through labor certification, which requires a recruitment process to show that no minimally qualified U.S. workers are available. Registered nurses and physical therapists are exempt from that requirement, because the government recognizes they are in a chronic shortage nationally. Nevertheless, efficiently bringing even nurses and physical therapists to the U.S. from abroad requires a careful coordination of immigration, credentialing, licensing and other processes. In any event, the permanent process cannot be used to bring a medical worker to the U.S. until a visa number becomes available, typically fiver or more years after the first filings are made. The lack of temporary options for nurses severely complicates foreign nurse recruiting.
Sometimes an alien health care worker could be authorized to work while pursuing permanent residence other than through the employer's sponsorship, such as through family sponsorship, visa lottery, refugee or asylum designation, or cancellation of removal. In that case the worker would present a USCIS employment authorization document (I-766). It is possible in some cases to employ an alien worker being sponsored for permanent residence by another employer, but experienced immigration counsel should be consulted about the many potential complications.
Certification Requirement. An alien who is seeking to gain temporary or permanent status for direct or indirect clinical work as a nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist/technician, or physician assistant must obtain a new type of certification comparable to CGFNS' "VisaScreen". The certification basically includes a combination of substantive tests, confirmation and equivalency evaluation of educational credentials, and a written and spoken English language test.
The English test is not required for graduates of health professional programs in Australia, Canada (except Quebec), Ireland, New Zealand, the U.K., and the U.S. In addition, graduates of certain nursing programs in those countries (plus South Africa) who have a U.S. license may be able to skip the substantive and English exam in obtaining the CGFNS certification. Graduates of programs with certain accreditations can allow exemption from the English language and educational comparability review.
Any alien who wants to receive temporary visa approval for more than a year at a time, or be able to proceed to permanent residence, should be encouraged to seek the certification for purposes of "INA section 212 (1)(5)(C)" from the following:
Commission on Graduates of Foreign Nursing Schools (www.cgfns.org): nurses, physical therapists, speech-language pathologists, medical technologists and technicians, and physician assistants.
Foreign Credentialing Commission on Physical Therapy (www.fccpt.org): physical therapists.
National Board for Certification in Occupational Therapy (www.nbcot.org): occupational therapists.
For the English language exam, the alien should pursue the TOEFL, TWE and TSE (see www.toefl.org); the TOEIC (www.toeic.com), TWE and TSE; or the IELTS (www.ielts.org) without need of TWE or TSE. The TSE (Test of Spoken English) has proven quite difficult for many foreign nurses to pass with sufficient score for certification, particularly from the Philippines, so that the availability of the TOEIC and IELTS is increasingly helpful.
How We Can Help
In the current tight labor market, workers from other countries cannot be categorically ignored. Hiring them, however, often involves complex processes with serious employer obligations. At the moment, limits on visa numbers plague the medical industry. We know the rules concerning exemptions from H-1B numerical limits and can help providers take advantage of them. Experienced immigration counsel should be consulted before entering into any immigration process. We understand the options available in U.S. immigration law and the practical means by which to pursue them. We use state-of-the-art, efficient processes to prepare, track and report status on high volumes of cases that some medical providers need to manage. We care for the family members of immigrating workers. We represent large research hospitals, small rural hospitals (and the entities that own them), nursing home entities, non-profit medical clinics, HMOs, physician groups, and of course foreign national physicians, throughout the United States. When requested (i.e., when we have not been associated only as immigration counsel), we work with our firm's Health Law Group, one of the biggest in the U.S., on contractual, fraud and abuse compliance, and other issues that arise in physician-provider relationships.
Consult with us for assistance with a case.
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