This page of our website provides information relevant to foreign national physicians, whether they received their medical training domestically or abroad. There are many issues surrounding the employment of doctors who are in the United States for training or employment on a non-immigrant visa. This article pays special attention to two of the most frequently asked questions related to the employment and representation of a foreign physician: the two-year home residence requirement and its waiver, and the possibility of permanent residence and the physician’s status during the period when his/her permanent residence application is pending.
FREQUENTLY ASKED QUESTIONS – PHYSICIAN IMMIGRATION
- What are the most common temporary visas for doctors?
- I am subject to the J-1 home residency requirement. How can I waive this requirement?
- If I can’t waive the requirement, what options do I have for living and working in the United States?
- What options do doctors have for obtaining permanent residency?
WHAT ARE THE MOST COMMON TEMPORARY VISAS FOR DOCTORS?
H-1B visas are non-immigrant visas that allow for the temporary employment of professional foreign nationals with a minimum of a Bachelors degree in a specialty field. Foreign medical graduates (FMG) may be admitted into the U.S. with an H-1B in order to engage in direct patient care or as part of a medical training program or to teach or conduct research for a sponsoring employer. In order to be granted H-1B status, physicians must also show that they have the appropriate license or authorization for the state in which they intend to work.
There is a limit to the number of H-1B visas available each fiscal year unless the sponsoring employer is exempt from the H-1B cap. Physicians who receive a waiver (through the Conrad waiver program or other state or federally sponsored program) of the J-1 two-year home residency requirement by agreeing to work in a Health Professional Shortage Area or Medically Underserved Area are permanently exempt from the H-1B cap regardless of whether or not the sponsoring employer is exempt from the cap.
H-1B employers are required to file a Labor Condition Application with the Department of Labor agreeing to several conditions, promising that the H-1B employee will be paid the higher of the actual wage or prevailing wage for the position and that internal notices have been posted in each of the employee’s anticipated work locations, or that notices have been provided to the union representative if applicable. Additional information about the LCA can be found at www.lca.doleta.gov. Please note that while audits by the Department of Labor are rare, careful preparation of the LCA and H-1B should be done by an immigration attorney knowledgeable in the subjects.
H-1B visas are granted for an initial period of up to three years, with extensions permitted for a total of six years in H-1B status. Exceptions to the six-year limit will be made if an I-140 or labor certification application is filed at least 365 days before his or her 6 years expires. The six-year limit can be a challenge for individuals who participate in residency programs that may take longer than 6 years to complete and for whom the positions may not meet the requirements for labor certification or I-140. Furthermore, if the physician wants to remain in the U.S. to work after completion of their residency, that physician will need to obtain other employment authorization if he or she used most or all of their 6 years of H-1B time for residency training.
H-1Bs are employer specific, thus if a physician changes jobs, the new employer must file a new H-1B with the immigration service before the physician can begin work. H-1Bs are location specific as well. Before the physician can move to another work location for the same employer, the sponsoring employer and/or physician should consult with an immigration attorney to determine whether or not a new H-1B may be required or if it will sufficient to file a new labor condition application (LCA) with the Department of Labor.
J-1 exchange visitor visas are attractive to most medical residency and training programs because the application process is generally less complicated than applying for an H-1B and employers are not required to submit Labor Condition Applications. However, foreign medical graduates who enter the U.S. with a J-1 visa are subject to the two-year home residence requirement under section 212(e) of the Immigration and Nationality Act. Individuals who are subject to 212(e) must return home to their home country for an aggregate of two years before they are eligible to change to another non-immigrant status or apply for permanent residence in the U.S.
The O-1 temporary employment visa is reserved for aliens of extraordinary ability in the arts, sciences, athletics, education or business. The O-1 visa can be a welcome option for highly talented physicians who can prove that they are among the top in their field. O-1 visas require a contract with a sponsoring employer or agent and are granted for an initial period of no longer than three years. Extensions are relatively easy and unlimited, granted in 1-year increments.
There are several advantages to the O-1 category, including: no cap on the number of O-1 visas granted in any fiscal year, no prevailing wage requirement, no minimum degree requirement, and more relaxed license requirements. Other visa categorites are frequently denied on the grounds that a license is required, even if the hospital does not require a license. O-1 visas cannot be denied on these grounds. The H-1B visa, in contrast, has annual quotas, strict license, credentialing and wage requirements, and a six-year limit.
Foreign medical graduates who enter the U.S. with a J-1 visa and are subject to the two-year home residence requirement 212(e) are eligible for an O-1 visa. However, they cannot change status in the U.S. and must consular process. Lastly, physicians who qualify for an O-1 visa may also be qualified to petition for permanent residency based on extraordinary ability, which bypasses the lengthy labor certification process (although in order to be granted permanent residency, they must address the 212(e) requirement).
In order to qualify for an O-1, a physician must be able to prove that he or she has substantial accomplishments. Most physicians who qualify under the O-1 category have publications and have played a critical role for institutions with prominent reputations. Being trained at a high level or posessing rare skills is not enough. An individual must show either a one-time achievement (such as receipt of a major internationally recognized), or satisfy at least 3 of the following criteria:
- Receipt of lesser nationally and internationally recognized prizes or awards for excellence in the field of endeavor;
- Memberships in associations in the field which require outstanding achievements of their members, as judged by experts in the field;
- Published materials about the individual in professional or major trade publications, or appearance/published materials about the individual in other major media;
- Participation, either individually or as part of a panel, as a judge of the work of others in the field (including requests to serve as a reviewer for articles to be published, invitations to serve on discussion and advisory panels, etc.)
- Original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field;
- Authorship of scholarly articles in the field, as published in professional or major trade publications or in other major media;
- Display of the individual’s work in the field;
- Serving in a leading or critical role for organizations or establishments that have a distinguished reputation;
- Commanding a high salary or other significantly high remuneration for services, as compared to others in the field.
USCIS may also accept additional types of documentation of extraordinary ability if the above-mentioned factors do not readily apply to the individual’s field of expertise. For example, receipt of a prestigious and competitive medical fellowship based on excellence in the field of endeavor (not based on a proposal for future work). A number of strong and focused letters from experts in the field serve as an advisory opinion that the individual does have a sustained reputation of extraordinary ability. It is important to show that the individual has already achieved the top level in his or her field.
O-3 visas are issued to the spouses and unmarried children of O-1 visa holders. Please note that O-3 visa holders do not have work authorization, but are permitted to study or volunteer.
Canadian or Mexican physicians may be eligible for a TN visa if their position primarily involves teaching or research. Patient care is permitted as long as it is incidental to research or teaching duties.
I AM SUBJECT TO THE J-1 HOME RESIDENCY REQUIREMENT. HOW CAN I WAIVE THIS REQUIREMENT?
About the Two Year Home Residency Requirement
A physician on a J-1 visa is required to return to his/her country of origin for two years if he/she has received funding from the U.S. government, received funding from the government of his/her country of origin, been listed on the skills list of either the country of last residence or country of nationality, or undertaken “graduate medical education or training” in the United States. This does not include training in dentistry and other fields that are not strictly “medical”. As long as the two-year home residence requirement is in place, the physician is not eligible for an H visa, L visa or permanent residence.
Waiver of the Two Year Home Residency Requirement
A physician who is subject to the two-year home residence requirement may be eligible for one of several waivers:
1) Conrad-30 Waiver: A physician engaged in clinical practice can be eligible for a waiver through sponsorship by a state health department under the Conrad-30 Program or by a specific Federal Government agency. Each state is allowed to issue 30 waivers per year, and details of the process and the requirements for a physician applying for one of these waivers varies widely from state to state. In all states, the doctor must begin practice in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) (the employing institution does not necessarily need to have any stated commitment to serving the poor or underserved, it needs only to be physically located in an underserved or shortage area). In order for the waiver to remain valid, the doctor must begin employment within 90 days of being granted the waiver and must continue working for the same employer for three years under H-1B status. There are also several federal government agencies that are authorized to recommend waivers to the Department of State. Except for the United States Veterans Administration, all of these agencies limit the doctor to primary care and require the doctor to serve 40 hours a week in an underserved or shortage area. The facility must provide care to Medicaid or Medicare-Eligible and indigent uninsured patients, and as with the Conrad-30 Program, the physician must work under H-1B status for the same employer for a minimum of three years. In both state sponsorship and federal government agency sponsorship, the recruitment of U.S. workers must be shown before the physician is hired.
The Veteran’s Administration does not require a sponsored physician to work full time – a minimum of 50% employment is necessary – and the physician is not limited to primary care and is not required to work in an underserved area. A waiver must be recommended by someone on the Veteran’s Administration faculty and is approved by the Central Office. Another federal agency, the Appalachian Regional Commission, issues waivers to physicians who did not receive specialty training and who practice in rural areas of Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. The Department of Health and Human Services also provides a clinical waiver to doctors who enroll in the Federal Credentialing Program less than 12 months after the end of their family practice residency. The application must be supported by the state and the doctor is restricted to primary care.
2) Interested Government Agency Waiver: A physician can also apply for an interested government agency waiver. In the case of a physician engaged in teaching or research, the Department of Health and Human Services (HHS) Exchange Visitor Waiver Review Board reviews an application that proves the importance of the applicant’s contribution to the research he/she is conducting and the importance of the research itself to the applicant’s field. Supporting evidence must include the applicant’s credentials, proof of the unavailability of U.S. workers, and proof of funding. The HHS then recommends a waiver of the applicant’s two-year return requirement to the Department of State. A doctor whose application has been approved does not need to work under H-1B status for any specified time.
3) Exceptional Hardship Waiver: An exceptional hardship waiver depends on the U.S. citizen spouse or children of the physician. This waiver applies when the spouse or children are likely to experience “exceptional hardship” by returning to the physician’s country of origin or by staying in the United States when the physician returns home. The application for this waiver can include such supporting evidence as psychological reports, travel advisories, proof of the lack of medical care and medication in the physician’s country of origin, etc. This waiver does not restrict the physician’s regional area of work or require a status change.
4) Persecution Waiver: A physician subject to the two-year home residence requirement is eligible for a persecution waiver if they are likely to experience persecution in their country of origin upon their return. This waiver does not restrict the physician’s regional area of work or require a status change.
IF I CAN’T WAIVE THE J-1 REQUIREMENT, WHAT OPTIONS DO I HAVE FOR LIVING AND WORKING IN THE UNITED STATES?
Some physicians are able to avoid the J-1 visa and two-year home residence requirement altogether if they qualify for an alternate temporary visa category. Canadian or Mexican national doctors are eligible for a TN-1 visa, but only those who graduated from a U.S. medical school can engage in clinical practice. (All others are restricted to research or teaching with only incidental clinical practice.) Some residency programs will sponsor foreign born doctors for H-1B visas in lieu of J-1 visas. Australian nationals may be able to use the E-3 visa category, which is similar to the H-1B.
Doctors who have already been on a J-1 visa and are subject to the home residency requirement have few immigration alternatives if they cannot get a waiver. Doctors of extraordinary ability with “sustained national or international acclaim and recognition” in the field are eligible for an O-1 visa. In this petition, the doctor, sponsored by an employer, must provide evidence that he/she is superior to his/her peers, preferably in a very specifically defined field. Supporting evidence should include reference letters from peers and colleagues in the specialty field. The initial O-1 visa can be granted for up to three years, followed by unlimited yearlong extensions.
WHAT OPTIONS DO DOCTORS HAVE FOR OBTAINING PERMANENT RESIDENCY?
A physician hoping to obtain permanent residence has several options. Family-based petitions, asylum, and investor petitions do not rest on the alien’s employment, but will only be available to physicians in specific situations. Extraordinary Ability petitions, which are subject to a similar standard as the O-1, do not require employer sponsorship or the credentialing exam, and allow the physician to avoid the lengthy labor certification process. Similarly, a National Interest Waiver (NIW) may be a good option for physicians willing to work in a medically underserved area. A physician who works in a HPSA/MUA in general medicine, pediatrics, internal medicine, OBGYN or psychiatry for at least five years is eligible for an NIW. In this case, the state or federal agency will write a letter testifying that the physician’s practice is in the interest of the United States. Finally, the employer can file a Labor Certification Application. For this application, the sponsoring employer must offer permanent employment (except when applying for a residency program) and prove that a recruitment procedure took place and produced no results.
Timing of the permanent residence application is critical, as most temporary visas have a specified time limit and the permanent residence process can take several years. It is important to ensure that a physician will have valid temporary status and work authorization until he/she is eligible for an employment authorization document (EAD) based on the I-485 Adjustment of Status application. Therefore we strongly encourage all physicians and employers to consider a permanent residence strategy as early as possible.