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O
C
Miscellaneous Technical Immigration and Naturalization Amendments of
1991 (MTINA), allows Physicians to obtain H-1B status by the following
Two Methods:
U.S. employers cannot readily recruit and obtain H-1B visas for most
international medical graduates (IMGs) who are residing abroad. This is
because IMGs are required to complete medical residencies in the U.S.
before they can obtain state licenses. To complete a residency program in
the U.S., most IMGs enter the country as nonimmigrant exchange visitors
("J-1" status).
countries of citizenship or last residence for two years before reentering the
U.S. as permanent residents or as H or L (intracompany transferee)
visaholders. However, many J residents obtain waivers of the two-year
home residency requirement. Also, many IMGs obtain H-1B visas to pursue
medical residencies. IMGs who complete medical residency programs
without obtaining J-1 status are eligible to be sponsored for H-1B visas by
private employers and/or for permanent residence upon completion of their
programs.
Graduates of Canadian medical schools are in a favored position as
compared with most IMGs:
First, they are not considered to be IMGs since the U.S. Department of
Education through the Licensing Commission on Medical Education (LCME)
has accredited all U.S. and Canadian medical schools. This distinction is
important since, in most cases, it exempts Canadians from having to
complete residencies in the U.S., from obtaining exchange visitor status, and
from the two-year foreign residency requirement.
Second, in over 40 U.S. states, Canadian-licensed physicians are exempted
from having to take U.S. examinations in order to obtain medical licenses.
These states consider the Licentiate Medical Certificate of Canada (LMCC)
examination to be equivalent to the FLEX.
Since most Canadian-trained physicians may obtain state medical licenses
in the U.S. without passing a U.S. examination, and because the FLEX was
primarily offered at test sites in the U.S., most Canadian physicians have not
taken the FLEX, the NBME or the USMLE. This is a major obstacle in
obtaining H-1B status for Canadian physicians. Many rightfully object to
having to interrupt their practices to take a licensing examination when they
are already licensed in the state of intended employment.
HHS has refused to designate any foreign medical examinations, including
the LMCC, as equivalent to the FLEX. This is unfortunate since it places the
federal government at loggerheads with over 80% of the state licensing
boards which recognize the LMCC as equivalent to the FLEX and prevents
many qualified Canadian physicians from obtaining temporary working
status in the U.S. Ironically, immigration laws permit these same Canadian
physicians to secure permanent residence in the U.S. without the necessity
of passing the FLEX or an equivalent examination.
OBTAINING TEMPORARY WORKING (H-1B) STATUS
Obtaining H-1B status for a physician is a three-step process:
U.S. immigration laws require that all H-1B physicians be paid the prevailing
wage for their occupation in the geographic area where they will be
employed or the actual wage being paid by the employer to other similarly
employed physicians, whichever is higher. Severe penalties may be
imposed on any employer who violates this requirement. The safest, though
not the only, way to establish the prevailing wage is to obtain a letter from the
State Workforce Agency (SWA) in the state of intended employment.
Once an employer has obtained a prevailing wage determination, he may
proceed to submit a labor condition application (LCA) to the U.S. Labor
Department. In addition to the wage requirement, the LCA requires that an
employer attest that:
1. The physician's working conditions will not adversely affect
those of U.S. physicians similarly employed.
2. There is no strike or lockout of physicians at the facility.
3. The employer has given notice of the filing of an LCA to its employees
either by serving the bargaining representative of the physicians, or if there is
no bargaining representative, by posting two notices that an LCA has been
filed. The notice must advise that complaints regarding the LCA may be
made to the Wage and Hour Division of the U.S. Labor Department. A copy of
the LCA must be given to the physician.
The LCA must also contain the name, address, federal tax ID number and
phone number of the employer, and the number of H-1B employees to be
hired, their occupational classification according to the Labor Department's
Dictionary of Occupational Titles, their dates of employment, and salaries.
The names of the physicians need not appear on the LCA. The LCA, and
certain supporting documentation, must be accessible to any "interested
party."
By law, the Labor Department must take action on an LCA within seven
business days. It may review an LCA only for completeness and obvious
inaccuracies. The Labor Department may investigate an employer to
determine whether it is complying with statements contained in an approved
LCA. Severe penalties may be imposed for any material misrepresentation
or failure to comply with a statement contained in an LCA.
STEP THREE: THE H-1B PETITION:
Once an LCA is approved, the employer may submit an H-1B petition to INS.
The employer must establish that both the offer of employment and the
qualifications of the physician meet the standards of the immigration law.
The employer must demonstrate its ability to pay the appropriate wage.
Although the law is not totally clear in this area, in a number of cases, INS
has allowed a hospital which does not actually employ a physician, but
which guarantees his salary, to act as a petitioner. Documents
demonstrating the physician's education, licenses, and compliance with the
English and the medical examination requirements of the law and the
regulations must accompany the petition.
The physician may not commence employment in the U.S. until the petition
is approved and he has either changed his status to H-1B or has obtained
an H-1B visa and entered the U.S. Simultaneously, the physician's spouse
and unmarried children under 21 years of age may be granted H-4
visas/status. Although H-4 status permits one to remain in the U.S. with the
H-1B physician, and to attend school, it does not permit the acceptance of
employment. The initial duration of an H-1B petition is three years, with one
additional three year extension of stay possible. Generally, after six years
have elapsed, the physician must either have achieved permanent
residence status or it is time for him to depart the U.S.
1991 (MTINA), allows Physicians to obtain H-1B status by the following
Two Methods:
- 1. Pursuant to an invitation from a public or nonprofit
private educational or research institution or
agency to teach or conduct research; OR
2. Pursuant to an offer of employment as a physician
if the foreign doctor has passed the Federation
Licensing Examination (FLEX) or its equivalent as
determined by the U.S. Department of Health and
Human Services (HHS); AND
3. She or he is competent in oral and written English,
or is a graduate of a medical school accredited
by the U.S. Department of Education.
A Foreign-born Doctor seeking H-1B status must:
1. Have a license or other authorization required by the
state of intended employment to practice medicine
if the physician will perform direct care and the state
requires the license of authorization;
AND
2. Have a full and unrestricted license to practice
medicine in a foreign country
OR
3. Have graduated from a medical school in the U.S. or a
foreign country.
The Petitioning Employer establish that the Physician:
1. Is coming to the U.S. primarily to teach or conduct
research, or both, for a public or a nonprof private
educational or research institution or agency, and
that no patient care will be performed, except that
which is incidental to the teaching or research
OR
2. Has passed the FLEX, or an equivalent examination
as determined by HHS (HHS has determined that the
equivalent examinations are the National Board of
Medical Examiners, the NBME, and the U.S. Medical
Licensing Examination, the USMLE);
AND
3. Is competent in English or is a graduate of a medical
school accredited by the U.S. Department of
Education. To demonstrate competence in English,
the doctor must pass the English proficiency test
given by the Educational Commission for Foreign
Medical Graduates.
U.S. employers cannot readily recruit and obtain H-1B visas for most
international medical graduates (IMGs) who are residing abroad. This is
because IMGs are required to complete medical residencies in the U.S.
before they can obtain state licenses. To complete a residency program in
the U.S., most IMGs enter the country as nonimmigrant exchange visitors
("J-1" status).
countries of citizenship or last residence for two years before reentering the
U.S. as permanent residents or as H or L (intracompany transferee)
visaholders. However, many J residents obtain waivers of the two-year
home residency requirement. Also, many IMGs obtain H-1B visas to pursue
medical residencies. IMGs who complete medical residency programs
without obtaining J-1 status are eligible to be sponsored for H-1B visas by
private employers and/or for permanent residence upon completion of their
programs.
Graduates of Canadian medical schools are in a favored position as
compared with most IMGs:
First, they are not considered to be IMGs since the U.S. Department of
Education through the Licensing Commission on Medical Education (LCME)
has accredited all U.S. and Canadian medical schools. This distinction is
important since, in most cases, it exempts Canadians from having to
complete residencies in the U.S., from obtaining exchange visitor status, and
from the two-year foreign residency requirement.
Second, in over 40 U.S. states, Canadian-licensed physicians are exempted
from having to take U.S. examinations in order to obtain medical licenses.
These states consider the Licentiate Medical Certificate of Canada (LMCC)
examination to be equivalent to the FLEX.
Since most Canadian-trained physicians may obtain state medical licenses
in the U.S. without passing a U.S. examination, and because the FLEX was
primarily offered at test sites in the U.S., most Canadian physicians have not
taken the FLEX, the NBME or the USMLE. This is a major obstacle in
obtaining H-1B status for Canadian physicians. Many rightfully object to
having to interrupt their practices to take a licensing examination when they
are already licensed in the state of intended employment.
HHS has refused to designate any foreign medical examinations, including
the LMCC, as equivalent to the FLEX. This is unfortunate since it places the
federal government at loggerheads with over 80% of the state licensing
boards which recognize the LMCC as equivalent to the FLEX and prevents
many qualified Canadian physicians from obtaining temporary working
status in the U.S. Ironically, immigration laws permit these same Canadian
physicians to secure permanent residence in the U.S. without the necessity
of passing the FLEX or an equivalent examination.
OBTAINING TEMPORARY WORKING (H-1B) STATUS
Obtaining H-1B status for a physician is a three-step process:
- 1. Obtain a prevailing wage determination (PWD) for the
practice opportunity
2. File a Labor Condition Application (LCA) with the regional
office of Employment Training Administration of U.S.
Department of Labor (DOL)
3. Submit an H-1B petition with the INS regional service
center
U.S. immigration laws require that all H-1B physicians be paid the prevailing
wage for their occupation in the geographic area where they will be
employed or the actual wage being paid by the employer to other similarly
employed physicians, whichever is higher. Severe penalties may be
imposed on any employer who violates this requirement. The safest, though
not the only, way to establish the prevailing wage is to obtain a letter from the
State Workforce Agency (SWA) in the state of intended employment.
Once an employer has obtained a prevailing wage determination, he may
proceed to submit a labor condition application (LCA) to the U.S. Labor
Department. In addition to the wage requirement, the LCA requires that an
employer attest that:
1. The physician's working conditions will not adversely affect
those of U.S. physicians similarly employed.
2. There is no strike or lockout of physicians at the facility.
3. The employer has given notice of the filing of an LCA to its employees
either by serving the bargaining representative of the physicians, or if there is
no bargaining representative, by posting two notices that an LCA has been
filed. The notice must advise that complaints regarding the LCA may be
made to the Wage and Hour Division of the U.S. Labor Department. A copy of
the LCA must be given to the physician.
The LCA must also contain the name, address, federal tax ID number and
phone number of the employer, and the number of H-1B employees to be
hired, their occupational classification according to the Labor Department's
Dictionary of Occupational Titles, their dates of employment, and salaries.
The names of the physicians need not appear on the LCA. The LCA, and
certain supporting documentation, must be accessible to any "interested
party."
By law, the Labor Department must take action on an LCA within seven
business days. It may review an LCA only for completeness and obvious
inaccuracies. The Labor Department may investigate an employer to
determine whether it is complying with statements contained in an approved
LCA. Severe penalties may be imposed for any material misrepresentation
or failure to comply with a statement contained in an LCA.
STEP THREE: THE H-1B PETITION:
Once an LCA is approved, the employer may submit an H-1B petition to INS.
The employer must establish that both the offer of employment and the
qualifications of the physician meet the standards of the immigration law.
The employer must demonstrate its ability to pay the appropriate wage.
Although the law is not totally clear in this area, in a number of cases, INS
has allowed a hospital which does not actually employ a physician, but
which guarantees his salary, to act as a petitioner. Documents
demonstrating the physician's education, licenses, and compliance with the
English and the medical examination requirements of the law and the
regulations must accompany the petition.
The physician may not commence employment in the U.S. until the petition
is approved and he has either changed his status to H-1B or has obtained
an H-1B visa and entered the U.S. Simultaneously, the physician's spouse
and unmarried children under 21 years of age may be granted H-4
visas/status. Although H-4 status permits one to remain in the U.S. with the
H-1B physician, and to attend school, it does not permit the acceptance of
employment. The initial duration of an H-1B petition is three years, with one
additional three year extension of stay possible. Generally, after six years
have elapsed, the physician must either have achieved permanent
residence status or it is time for him to depart the U.S.
BOGLE
OKOYE
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OBTAINING PERMANENT RESIDENCE
A U.S. employer may obtain permanent residence ("green
card") status for a foreign-born physician if the employer can
demonstrate that it is unable to locate a U.S. physician to fill
the position.
An employer may obtain permanent residence for a foreign-
born physician utilizing the following three step process:
state, an employer is typically required to place a job
advertisement for a physician in an appropriate national
journal. The ad must describe both the employment offered
in terms of the job duties and the salary (The salary offered
may not be less than the prevailing wage.) and the
qualifications required to perform the job. The name of the
employer need not be mentioned in the ad.
After reviewing the resumes received and interviewing any
applicants who profess to be qualified for the position, the
employer must demonstrate to the Labor Department that
there are no U.S. physicians ready, able and qualified to
perform the job.
In contrast to the requirements for obtaining H-1B status, an
employer need not require that an applicant for permanent
residence have passed the FLEX, or even that he has
obtained a medical license in the state of intended
employment.
There is an exception to the labor certification requirement
for physicians whose employment would be in the "national
interest". Generally, physicians who intend to practice in
medically underserved areas for a minimum of five years
may petition the INS to bypass the labor certification
requirement. Even physicians who are independent
practitioners rather than "employees" are eligible to apply
for national interest waivers. However, INS regulations
restrict which physicians are eligible for national interests
waivers, and how they qualify to do so.
STEP TWO: VISA PETITION
Once the Labor Department has approved the alien labor
certification, the employer must submit a petition to INS to
classify the physician under the appropriate category for
permanent residence. Most physicians qualify under the
employment- based second category as professionals
holding advanced degrees.
The employer must demonstrate that they have the financial
ability to guarantee the physician's salary. They must also
establish that the employment is full-time with no definite
termination date. Documents evidencing the physician's
education and prior experience must be attached to the
petition.
STEP THREE: APPLICATION FOR PERMANENT RESIDENCE
If the physician's priority date is "current" (There are
numerical backlogs which govern the length of time that a
physician with an approved visa petition must wait to file an
application for a green card.
However, presently, there is no backlog for physicians.), the
physician and his family may apply for permanent residence
either at the INS office having jurisdiction over his place of
residence in the U.S. at the same time that the visa petition
is submitted. Alternatively, once the visa petition is
approved, they may apply for permanent residence at a U.S.
Embassy or Consulate in the physician's home country.
When the application is made to INS, it is known as an
application for "adjustment of status." When it is made
abroad, it is called an application for an "immigrant visa".
Simultaneously with the submission of the application for
adjustment of status, INS offices permit applications for
employment authorization and "advance parole" (which is a
travel document) to be filed on behalf of the physician, his
spouse and children.
All applicants for permanent residence must show that they
are not "excludable" from the U.S. Grounds for excludability
may include certain criminal convictions, immigration fraud,
subversive activities and infection with certain dangerous
contagious diseases.
A U.S. employer may obtain permanent residence ("green
card") status for a foreign-born physician if the employer can
demonstrate that it is unable to locate a U.S. physician to fill
the position.
An employer may obtain permanent residence for a foreign-
born physician utilizing the following three step process:
- 1. Application for alien labor certification from U.
S. Labor
Department (DOL)
2. Submission of visa petition to INS
3. Application for permanent residence from INS
or U.S.
Embassy or Consulate abroad
STEP ONE: LABOR CERTIFICATION
Unless the physician in question is a "person of
extraordinary ability in the sciences" (i.e., a Jonas
Salk or a Christian Barnard) or his employment is
clearly in the "national interest", his employer must
undergo the labor certification process in order to
obtain permanent residence on his behalf.
state, an employer is typically required to place a job
advertisement for a physician in an appropriate national
journal. The ad must describe both the employment offered
in terms of the job duties and the salary (The salary offered
may not be less than the prevailing wage.) and the
qualifications required to perform the job. The name of the
employer need not be mentioned in the ad.
After reviewing the resumes received and interviewing any
applicants who profess to be qualified for the position, the
employer must demonstrate to the Labor Department that
there are no U.S. physicians ready, able and qualified to
perform the job.
In contrast to the requirements for obtaining H-1B status, an
employer need not require that an applicant for permanent
residence have passed the FLEX, or even that he has
obtained a medical license in the state of intended
employment.
There is an exception to the labor certification requirement
for physicians whose employment would be in the "national
interest". Generally, physicians who intend to practice in
medically underserved areas for a minimum of five years
may petition the INS to bypass the labor certification
requirement. Even physicians who are independent
practitioners rather than "employees" are eligible to apply
for national interest waivers. However, INS regulations
restrict which physicians are eligible for national interests
waivers, and how they qualify to do so.
STEP TWO: VISA PETITION
Once the Labor Department has approved the alien labor
certification, the employer must submit a petition to INS to
classify the physician under the appropriate category for
permanent residence. Most physicians qualify under the
employment- based second category as professionals
holding advanced degrees.
The employer must demonstrate that they have the financial
ability to guarantee the physician's salary. They must also
establish that the employment is full-time with no definite
termination date. Documents evidencing the physician's
education and prior experience must be attached to the
petition.
STEP THREE: APPLICATION FOR PERMANENT RESIDENCE
If the physician's priority date is "current" (There are
numerical backlogs which govern the length of time that a
physician with an approved visa petition must wait to file an
application for a green card.
However, presently, there is no backlog for physicians.), the
physician and his family may apply for permanent residence
either at the INS office having jurisdiction over his place of
residence in the U.S. at the same time that the visa petition
is submitted. Alternatively, once the visa petition is
approved, they may apply for permanent residence at a U.S.
Embassy or Consulate in the physician's home country.
When the application is made to INS, it is known as an
application for "adjustment of status." When it is made
abroad, it is called an application for an "immigrant visa".
Simultaneously with the submission of the application for
adjustment of status, INS offices permit applications for
employment authorization and "advance parole" (which is a
travel document) to be filed on behalf of the physician, his
spouse and children.
All applicants for permanent residence must show that they
are not "excludable" from the U.S. Grounds for excludability
may include certain criminal convictions, immigration fraud,
subversive activities and infection with certain dangerous
contagious diseases.
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