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Navigating Immigration:
Presented to
The Pennsylvania Association
of Community Health Centers
Annual Conference
By:
Wendy Castor Hess, Esq.
&
Karen M. Pollins, Esq.
Lancaster, PA
October 7, 2014
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101 Greenwood Ave. Ste 380 Jenkintown, Pennsylvania 19046
What is an IMG?
• International Medical Graduate = physician who
obtained a medical degree abroad;
• Includes U.S. citizens who chose to go to
medical school abroad;
• Includes foreign born physicians who obtained
Lawful Permanent Resident status or U.S.
Citizenship;
• Our focus will be on IMGs who come to the U.S.
to pursue training/employment on a
nonimmigrant (temporary) visa…
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Recruiting Foreign Physicians &
Providing Immigration Sponsorship
• Great tool for recruiting and retaining qualified
physicians!
• Be careful not to discriminate in recruitment
process! Treat all applicants the same – ask the
same permissible questions:
– Are you legally authorized to work for [our health center] in the
U.S.?
– Will you require visa sponsorship?
• Type of visa sponsorship will depend on foreign
physician’s current and previously held visa status…
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Two Arms of Employment-Based
Immigration Law for Physicians
(temporary)
Professional
H-1B
O
(green card)
Can lead to
U.S.
Citizenship
Training
J
F
EB-1 EB-2
EB-3
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Nonimmigrant (Temporary)
Options for IMG Physicians:
H-1Bs, J-1s, J-1 Waivers and
O-1s
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H-1B Temporary Worker
• Nonimmigrant visa classification for IMG
trainees or practicing physicians to work for a
specific employer
• Duration: up to 6 years (with exceptions)
• H-1B cap (65,000 + 20,000 visas per fiscal year –
not enough to meet demand in recent years)
– Certain institutions exempt from cap: (1)
colleges/universities, (2) affiliated nonprofits
and (3) nonprofit government/research
organizations
– J-1 Waiver beneficiaries also exempt
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Requirements for H-1B Physicians
• Medical degree;
• USMLEs – Steps 1, 2 and 3
• ECFMG Certificate for English language
fluency (not required for Canadian
physicians); and
• Valid state medical license. Note: Trainees
with temporary licenses may be limited to
H-1B status in 1-year increments (instead of
the typical 3 years)
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H-1B Petition Process
• Obtain certified Labor Condition
Application from U.S. Department of Labor
• File H-1B Petition with U.S. Citizenship &
Immigration Services – detailing position
and IMG’s qualifications (degree, USMLEs,
ECFMG certification, license, etc.);
• Processing Time:
– ~ 2 - 4 months via regular processing
– 15 days via Premium Processing
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J-1 Exchange Visitor
• Nonimmigrant visa classification that
permits IMGs to obtain post-graduate
medical training
• Duration: program length + 30-day grace
period (generally limited to 7 years)
• Pro: No annual cap!
• Con: Requires return and physical presence
in home country or country of last residence
for two years.
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Post-Training Options for J-1 Physicians
1) Go home– satisfy two year home
residence requirement;
2) Obtain a waiver of J-1 two year home
residence requirement;
3) Obtain O-1 or other nonimmigrant visa
status (defers, does not eliminate, twoyear home residence requirement); or
4) Obtain Asylum/Withholding of
Removal.
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J-1 Physician Waiver Options
1) Federal Interested Governmental
Agency (IGA);
2) State Department of Health – Conrad
30 Program;
3) Exceptional Hardship;
4) Persecution.
*** IMGs are ineligible for “no objection”
waivers.
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Federal IGA Waivers
• Direct clinical employment by
Interested Government Agency: e.g.
Department of Veterans Affairs (VA),
Delta Regional Authority (DRA),
Appalachian Regional Commission
(ARC).
• Conducting outstanding research:
Department of Health & Human
Services (HHS)/NIH.
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ARC J-1 Waiver
• Physician must have job offer at a HPSA
facility in an ARC county that serves
Medicare, Medicaid and indigent patients
• Limited to primary care
• Need support of state DOH/governor
• Physician must commit to working full-time
(40 hours) for 3 years
• Good faith recruitment effort in 6 months
prior to waiver application submission
• Contract restrictions – non-compete
prohibited; liquidated damages required
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Conrad State 30 J-1 Waiver Program
• 30 slots per state per year
• Physician needs job offer at a facility in
a federally-designated underserved
area (HPSA, MUA/P)
– Exception: 10 of the 30 may be for
physicians not located in federallydesignated underserved areas, but who
treat patients from such areas (FLEX)
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Federal Conrad 30 Requirements
• Must provide full-time (40 hours) clinical
services (i.e. direct patient care)
• 3 year service term (fulfilled in H-1B status)
• Physician must agree to begin employment
within 90 days of USCIS approval
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Other State-Specific Considerations
• Primary care versus specialty care
• Application periods
• Contract restrictions (e.g. non-compete
clauses)
• Filing fees
• Reporting requirements
• Number of slots utilized
• FLEX waiver policy
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J-1 Clinical Waiver Process
• Register – Physician submits
Application to obtain case number
with U.S. Department of State (DOS)
• Apply – Employer submits J-1 Waiver
Application to State Department of
Health (DOH)
• DOH recommends waiver to DOS
• DOS recommends waiver to USCIS
• USCIS issues final waiver approval
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Exceptional Hardship J-1 Waiver
• Hardship to U.S. Citizen or Permanent
Resident spouse or child
• Need to show hardship if physician
returns for two years either with or
without qualifying relative
• Process:
– I-612 Application filed with USCIS
– Reviewed by DOS Waiver Review Division
• Processing time: ~ 4 - 8 months
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Persecution J-1 Waiver
• Persecution based on race, religion, or
political opinion
• IMG may also be eligible for asylum
• Process:
– I-612 Application filed with USCIS
– Reviewed by DOS Waiver Review Division
• Processing time: ~ 4 - 8 months
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Immigrant (Permanent
or “Green Card”)
Options for IMG Physicians:
NIWs and PERMs
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Green Card Process
• IMG physicians are usually in the
Employment-Based, Second Preference (EB-2)
category for “advanced degree professionals”
• Generally a 3-step process
(1) Labor Certification (PERM) Application
filed with U.S. Department of Labor
(2) I-140 Immigrant Petition filed with U.S.
Citizenship & Immigration Services (USCIS)
(3) I-485 Application to Adjust Status filed with
USCIS (if priority date current…)
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Introducing the Visa Bulletin
EmploymentBased
All Chargeability
Areas Except
Those Listed
CHINA
INDIA
MEXICO
PHILIPPINES
1st
EB-1
Current
Current
Current
Current
Current
2nd
EB-2
Current
15 FEB 05
01 JAN 00
Current
Current
3rd
EB-3
01 OCT 11
O1 APR 09
15 NOV 03
01 OCT 11
01 OCT 11
01 OCT 11
22 JUL 05
15 NOV 03
01 OCT 11
01 OCT 11
OTHER WORKER
Employment Based - October 2014 Visa Bulletin
Messages:
• “Priority Date”= date Application / Petition is filed with
government
o For those that require PERM, date PERM filed
o For those that do not require PERM, date I-140 filed
• There is a backlog for 2ND PREFERENCE physicians born
in India and China
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Labor Certification - PERM
• Employer must place ads (i.e. test the
labor market) to show that it was unable
to recruit minimally qualified, willing
and available U.S. workers for the
position
• Must show that IMG physician will be
paid the “prevailing wage” in the area of
intended employment
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National Interest Waiver (NIW)
• Waiver of labor certification requirement
• IMG physician must agree to work in a
medically-underserved area (HPSA,
MUA/P) for 5 years
• State DOH supports the NIW and issues
a letter certifying that the medical service
is in the “public interest”
• Good option for IMGs who already have
3-year service obligation pursuant to J-1
waiver
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CONCLUSION
• Although complex, immigration laws allow
the recruitment of highly-qualified IMG
physicians by U.S. employers!
• Keys for Success:
• Careful screening and strategic planning
• Advance planning
• Open communication
• Participation by employer, IMG and
legal counsel throughout process
Goldblum & Hess
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