Physicians who enter the U.S. to obtain graduate medical education, training, or to practice medicine with temporary visas and hope to obtain permanent residence (immigrant visas/green cards) have several options. The various paths to permanent residency also come with a variety of restrictions and limitations. In general these permanent residence applications require employer sponsorship, but there are sometimes family, or self-sponsorship options.
The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas (green cards), which are divided into five preference categories. The immigrant visas may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with the United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).
PERM alien labor certification
PERM Alien Labor Certification procedure is a three-step process by which an employer such as a hospital, clinic or research center may sponsor a physician employee for permanent residence. All jobs qualify for Labor Certification. The goal of the Labor Certification process is to protect the jobs of U.S. workers. In the first step, the U.S. Department of Labor (DOL) will grant a Labor Certification after the employer tests the local labor market by advertising the physician’s position in various media according to very specific Department of Labor guidelines. If DOL determines that there are no U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the physician will not adversely affect the wages and working conditions of similarly employed U.S. workers, then DOL will grant a Labor Certification. The physician must meet the minimum qualifications for the position at the time the advertisements are run. This may include standard physician qualifications such as a proper state license and board eligibility or certification.
Physicians employed by an institution of higher education in teaching positions may be eligible for fast track processing of their PERM labor certification applications through the “Special Handling” provisions of the regulations.
After the Department of Labor approves the Labor Certification application, the employer files step two, an I-140 Immigrant Worker Petition with the U.S. Citizenship and Immigration Services (USCIS) to classify the physician into a preference category for a permanent visa and to validate the bona fide job opportunity by proving that the employer had the ability to pay the foreign national the offered wage at the time of filing the labor certification application. The physician and his or her family may file step three, their I-485 applications for permanent residence with the I-140 petition if there are permanent visa numbers available according to the U.S. State Department Visa Bulletin https://travel.state.gov/content/visas/en/law-and-policy/bulletin.htm.
When filing the I-485 Application for Permanent Residence, the physician and his or her family may also be eligible to apply for unrestricted work cards and travel documents. The Employment Authorization Document (EAD) work card allows the physician to moonlight or perform consulting work without the need for an additional H-1B visa. The EADs will also allow dependent family members employment authorization. Advance Parole (AP) travel documents will allow applicants to enter the U.S. without a visa. AP documents are an attractive option to foreign nationals who may face long delays at the Consulates or Embassies in their application for visa stamps to return to the U.S. after travel abroad.
National Interest Waiver (NIW) for Physicians
Individuals who possess an advanced degree (Master’s level or above) and/or who can demonstrate exceptional ability in their field may be eligible to apply for a “National Interest Waiver”. Two kinds of National Interest Waiver petitions are available, (1) the standard petition and (2) the physician NIW. In both cases, the I-140 petition is filed directly with the immigration service, without the need for a DOL certification.
To qualify for a standard National Interest Waiver, an individual must satisfy three criteria: the individual’s work must be of “substantial intrinsic merit”, the benefit of the individual’s work must be national in scope (not serving only a localized geographical area), and waiving the labor certification process must be “in the national interest”. This is a particularly vague and subjective standard. The USCIS is not consistent in how they evaluate this standard, but it is usually satisfied by showing that the work of the individual is of such a high caliber and importance that a labor certification would not be logical. This type of petition does not require employer sponsorship.
National Interest Waiver petitions for physicians are an option for primary care physicians and specialists who commit to working five (5) years in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), Mental Health Professional Area (MPHSA for Psychiatrists only), Physician Scarcity Area (PSA), or at a Veteran Affairs facility. Dentists, chiropractors, podiatrists, and optometrists are not eligible for this category.
The NIW physician petition must include a letter of support from a federal agency or state department of health stating that the physician’s employment is in the public interest. Each federal agency and state department of health has different criteria that must be met before a letter of support will be issued.
The I-485 Adjustment of Status applications for the physician and his or her family may be filed concurrently with the I-140 NIW petition if visa numbers are available, but will not be adjudicated for final approval until the five years of work in the designated area are completed. Applications for employment and travel documents may also be submitted with the I-485. Applications to renew the EAD must include evidence that the physician is completing the five-year service requirement.
NIW physicians may transfer to another employer located in an underserved area during their five-year commitment, but a new I-140 petition must be filed. The I-140 “AC21 portability” regulations, which normally allow applicants to switch employers without filing a new I-140, do not apply to this category. However, the previously accrued experience will count towards the five-year requirement. The USCIS has removed the six-year time limit for completing service in the designated shortage area, but reserves the right to deny permanent residence if the physician appears to be using the EAD benefit of the pending adjustment of status application for employment in other areas or occupations.
Employment Based First Preference Petitions
Physicians who have conducted research or otherwise contributed to the advancement of medical care may be eligible for the first preference EB1-2 Outstanding Researcher or EB1-1 Extraordinary Ability categories. Physicians who qualified for an O-1 visa may also be qualified to petition for permanent residency, which bypasses the lengthy labor certification process.
The Outstanding Researcher category requires an employer sponsor, evidence that the physician has at least three years of previous experience in teaching or research in the field of specialization, evidence of recognized outstanding accomplishments in the field and evidence that the physician has an offer of a permanent teaching or research position with an appropriate institution of higher learning or research institution. The USCIS considers a permanent position to be one that is either tenured, tenure-track, or for a period of indefinite or unlimited duration.
The Extraordinary Ability category does not require an employer sponsor or evidence of a permanent position. Extraordinary Ability petitions, which are subject to a similar standard as the O-1 visa petition, do not require the credentialing exam and also allow the physician to avoid the lengthy labor certification process. In order to qualify as an “Alien of Extraordinary Ability”, an individual must show either a one-time achievement (such as receipt of a major internationally recognized award of the caliber of the Nobel Prize or an Olympic Medal), or meet at least 3 criteria.
Both categories require evidence that the physician has achieved recognition as an expert at the top of his/her field.
Family petitions and other pathways to permanent residency
In addition to the above roads to permanent residence, physicians may be eligible for a green card based on family relationships, political asylum, and special programs of Congress.
Family-based immigrant categories are divided into several levels. The top level, immediate relatives, includes spouses, parents (of children who are at least 21 years of age) or children (under age 21) of U.S. citizens. A physician who is the spouse or child of a U.S. citizen should consider this option.
There are long backlogs for the lower levels, including spouses and children of Legal Permanent Residents (LPR), married children of U.S. citizens, and brothers/sisters of U.S. citizens. Information about the backlogs for visa numbers can be found in the Visa Bulletin, which is published monthly by the Department of State.
Political asylum is a category that is available to individuals who are afraid to return home due to persecution based on race, religion, nationality, social group or political opinion. This category involves an initial application followed by an in-person interview with a USCIS examiner. If asylum is granted, the individual is given a permanent status, but must wait one year before applying for the green card.
The most common special program of Congress is the Diversity Visa Lottery. This is a program run by the Department of State that makes 50,000 green cards available to individuals from countries that have low rates of immigration to the U.S. The lottery generally runs from October to December, and instructions are posted online at https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html. It is a lottery, so the chances of winning are low – but if you are from a country that qualifies (or your spouse is), we do recommend trying. We have clients who win every year. If an individual qualifies for permanent residence, his or her spouse and children may obtain their green cards on the same basis.
Physicians should also consider if their non-U.S. Citizen or LPR spouse is eligible for permanent residence in a faster or easier category. A married couple should consider all possible options for both individuals, and determine the most direct route to a green card for all. There are many categories not discussed in this article that may be options for your spouse, including a special category for nurses and physical therapists, multi-national managers, and investors.
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.
Conclusion
It is important that an individual who wishes to apply for permanent residence in the United States consider all possible options. Individuals are allowed to apply for permanent residence in any one of the categories mentioned or in multiple categories at the same time depending on eligibility. Physicians and employers should keep in mind that the 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. Advance planning will not only allow for the inevitable delays of the green card process but will also 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.