Immigration Information for Foreign Physicians

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Aren't U.S. immigration laws ironic? These laws seem to apply more stringent standards on highly esteemed professions with clear shortages. The medical profession stands as a visible example of such shortages. For example, a recent issue of Business Week reports that the U.S. has fewer physicians per dollar of gross domestic product than most countries in the Organization for Economic Cooperation & Development. The January/February 2002 issue of Health Affairs, a policy journal, predicts that the nation will face a shortage of 50,000 physicians by 2010.

Before they are free to live and practice medicine in the U.S., foreign physicians experience frustration over the complex immigration process. This situation affects a surprising number of people and medical facilities-the American Medical Association's current statistics show that international medical graduates (IMGs) now comprise more than 20% of physicians working in the U.S. Future increases in the number of IMGs practicing medicine illustrate one possible way of stemming an increasingly significant shortage of physicians in the U.S. An overview of obtaining proper work authorization for IMGs shows how nonimmigrant and immigrant options available to foreign medical doctors makes it possible for individuals in this situation to live and practice medicine in the U.S.
Requirements

All physicians (IMGs as well as U.S. citizens) must overcome basic hurdles in order to practice medicine in the U.S. In addition to their degree from a foreign medical school, IMGs must pass Parts 1 & 2 of the U.S. Medical Licensing Exam (http://www.usmle.org/). They must also pass an English-language proficiency test and obtain certification from the Educational Commission on Foreign Medical Graduates (http://www.ecfmg.org/), which establishes knowledge equivalent to that gained at a U.S. medical school.
J-1

Many IMGs come to the U.S. to train in J-1 status under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG) or other academic institutions. Duration of this program is limited to 7 years, and participation in such a program subjects the alien to a two-year home country physical presence requirement under INA s.212(E). Unless foreign physicians are willing to return to their home country for two years, they must obtain a waiver of the two-year home residency requirement.

Unfortunately, obtaining a J-1 waiver often has its own restrictions. Foreign medical graduates are specifically precluded by statute from applying for a waiver based solely on a 'no objection' statement. However, they may apply for a waiver based on exceptional hardship, persecution, or through the support of an interested government agency. For more information on these waivers, please visit the J-1 waiver section at our website.

For the majority of the J-1 foreign medical graduates, finding an interested government agency may be the only option. Over 1,000 IMGs are sponsored for J-1 waivers each year, but obtaining a waiver of the foreign residency requirement through this means has become increasingly difficult. An interested government agency must determine that the alien's continued stay in the U.S. is in the national interest. To obtain waivers for J-1 visa holders, the sponsoring employer must be located in a federally designated Health Professional Shortage Area ('HPSAs,' bphc.hrsa.gov/databases/newhpsa/newhpsa.cfm) or Medically Underserved Areas ('MUAs' bphc.hrsa.gov/databases/newmua), and the physician must practice primary care or psychiatry.

Several federal agencies currently sponsor IMGs for waivers, albeit in a limited manner. These include the Appalachian Regional Commission (www.arc.gov), which covers 13 Appalachian states; the Department of Health and Human Services (www.hhs.gov) in research positions; and the Veterans Administration (www.vacareers.com) in its facilities. The Department of Agriculture (USDA) used to sponsor IMGs for J-1 waivers but ceased doing so this year in response to security concerns.

Lastly, a J-1 physician may apply for a waiver using the "Conrad 20" program, named after its author, Senator Kent Conrad of North Dakota. Under this program, participating states may sponsor up to 20 IMGs for J-1 waivers each year. Over 40 states participate in the program, with Texas and California standing as notable exceptions. The participating physician must pledge to provide service for not less than 3 years in a facility located in HPSAs or MUAs, but not all states require that they practice primary care or psychiatry.
H-1B visas

The H-1B category provides an alternative to the J-1 for U.S. employers who wish to employ IMGs. The H-1B category is preferable because it is less restrictive to both employers and physicians:

The employer does not have to be located in federally designated areas Physicians are not limited to specific practice areas Physicians are not subject to the 2-year home residency requirement. In order to attend U.S. residency programs on H-1Bs, the alien must: 1) be a graduate of a U.S. medical school and have licensure as required for the type of employment by the statue of intended employment; or 2) be an IMG who has completed all three parts of USMLE or passed both parts of the Federation Licensing Exam (FLEX) and obtained ECFMG English-language certification and licensure.
E-2 visas

When the foreign physician wishes to be self-employed, the E-2 visa category offers itself as an option for exploration. A physician from a country that has a bilateral commercial treaty with the U.S. may qualify as an E-2 principal investor for the purpose of setting up his/her own medical practice in the U.S. In addition to possessing a license to practice medicine in the state of intended employment, a foreign physician seeking E-2 treaty investor status must make a substantial, non-marginal investment. He or she also takes responsibility for the development and overall direction of the investment.
Canadian physicians

As a surprise to many, Canadian-educated physicians are not considered IMGs. They may obtain medical licenses in most U.S. states and obtain green cards based on their Canadian training and exams. However, they cannot obtain H-1B visas unless they have completed a U.S. qualifYing exam, such as USMLE, NBME, or FLEX. Canadian physicians who have completed a U.S. exam can obtain H-1B visas and work in the U.S. in a matter of months. Those who have not taken a U.S. exam may have to wait a longer time until they obtain a green card and are legally authorized to work.
Permanent residence ("green card")

Foreign physicians seeking to become lawful permanent residents have several options. One prominent option is the National Interest Waiver, a convenient option for those physicians already working in health professional shortage areas. Another option is applying under other preference categories.

The National Interest Waiver (NIW) is a waiver from the job offer and labor certification requirement when work by the alien serves the "national interest." Until late 1998, cases involving a physician serving or situated in HPSA, MUA, or a state-designated area experiencing underservice of health care, were clearly approvable as National Interest cases. However, by late 1998, the BCIS began denying NIW cases of physicians in shortage area cases under this category, on the interpretation that the physician's work only provided local benefit and was not national in scope. Such narrow interpretation caused concerns over providing adequate health care coverage, so the U.S. Congress passed a law in 1999 that carved out an exception for physicians in these circumstances and restored NIW benefits to physicians in shortage areas.

Under the interim regulations, BCIS will grant NIWs to physicians who serve at least five years in medically underserved areas. To obtain a NIW for a foreign physician, the following requirements must be met:

Physician must agree to work full-time in a health shortage area as designated by the Secretary of Health and Human Services or at a VA facility;
Determination by a federal agency or state public health department that the work is in the public interest; and Physician must work full-time for an aggregate of 5 years (waivers filed before November 1st, 1998 are approved with evidence of full-time work for 3 years instead of 5).
One advantage of the NIW is that Adjustment of Status applications can be filed concurrently with NIW petitions (or, for those who began as J-1s, immediately after completion of their three years of service pursuant to a commitment under the Conrad Amendment) prior to the completion of the fifth year. This means that the dependent spouse may also obtain an Employment Authorization Document.

If the employment is not situated in one of the designated shortage areas or the physician wishes to avoid the 5-year obligation, other immigrant options exist. Alternative options include:

Self-petition under the Alien of Extraordinary Ability category. This category can be used by physicians who are internationally renowned, as indicated by meeting three of ten evidentiary criteria An employer's petition for outstanding professors and researchers in the medical discipline. An immigrant petition based on pre-approved labor certification, which requires proper licensure for the state of intended employment.
As this overview reveals, physicians must contend with rather complex immigration rules and regulations before they can legally practice in the U.S. Again, many limitations are imposed on the foreign physicians, although several exemptions are available for individuals in these circumstances. In tandem, these limitations and exemptions create a labyrinth that make careful and advanced planning a must for medical professionals dealing with the complexities of immigration law.



The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

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