Here is a cautionary tale showing that “penny-wise and pound-foolish” estate planning strategies are a bad idea. Just days ago, an estate litigation will-dispute appeal was decided in favor of the decedent’s nieces even though they weren’t even mentioned in the Will. Aldrich v. Basile, SC11-2147 (Supreme Court of FL 2014). For a background of the dispute, Ann Aldrich had decided to reduce costs and employ an “E-Z” online will form to complete her last will and testament. The form unfortunately only allowed several specific bequests but did not contain a residuary clause for all unspecified assets. The end-result: Not only was Ms. Aldrich’s probable intent circumvented since her assets went to nieces not even included in the will, but the estate also incurred costly litigation expenses.
Foreign national physicians in the United States who hold a J-1 visa are required to leave for two years prior to returning. This can be a wrenching prospect for those who have married and put down roots in the United States. There is relief offered by “waiver” by which this requirement can be waived. One such waiver option is based upon the hardship the 2-year return would cause to the physician’s U.S. citizen or lawful permanent resident family members.
- The facts of each physician’s case are unique to him or her, and must be examined carefully to include:
- The physician’s home country
- The physician’s family members and their status (citizen or lawful permanent resident)
- Country conditions that will prompt the hardship
- The type of hardship(s) that will be caused, such as medical, safety, social, educational, professional, and/or other
- Evidence and proofs of the hardship(s)
For physicians with U.S. citizen or lawful permanent resident family members, this option should be carefully considered as a valuable means to apply for a waiver of the two-year rule.
In order to remain in the U.S., physicians holding a J-1 visa must obtain a waiver, and one way to do so is based upon fear of persecution. In this type of waiver, the physician must fear persecution in their home country based upon race, religion, or for political reasons. The facts giving rise to this fear must be documented; for example, reports for the particular home country conditions must be supportive. One good source for country condition reports is the United States Department of State (see http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper) as well as NGOs such as Human Rights Watch.
Before considering this option, it is essential that the physician carefully examine the facts unique to him or her as well as the conditions in the home country.
The EB-1 Alien of Extraordinary Ability is a very valuable immigration option for foreign national physicians seeking lawful permanent residency in the U.S. But, the self-petitioner has a high bar to meet: the legal standard for eligibility is very onerous permitting only those physicians at the very top of their field to apply. Evidence this standard is met or exceeded includes:
receipt of an international prize
publications in peer-reviewed, prestigious journals
quality of citations to the petitioner’s publications
requests to review peers’ work
weight of contributions to the field
It is essential that great care be taken to ensure the proper evidence is assembled and organized, thereby facilitating USCIS review.
The National Interest Waiver EB-2 immigration option provided initially under the Immigration Act of 1990 (IMMACT90) is a valuable immigration option for foreign national physicians seeking lawful permanent residence or “green card.” This option can be of particular value for physicians from India and China due to extended delays in obtaining permanent residence otherwise. The basic premise is that by serving in an underserved area, the physician’s service warrants waiver of the typical labor certification process.
The basic requirements are that a primary care physician or specialist (see USCIS Interoffice Memorandum, Michael Aytes, January 23, 2007, http://www.uscis.gov/files/pressrelease/SchneiderIntrm012307.pdf, “Schneider Memo”) must serve full time for five years “in aggregate” in a federally-designated MUA (medically underserved area), HPSA (health professional shortage area), MHPSA (mental health professional shortage area), or at a Veteran’s facility; additionally, the state department of health or federal agency must provide a letter acknowledging the critical nature of the physician’s service. 8 C.F.R. 204.12, 245.18. Case law provides for aggregating of the physicians service in the underserved area, pursuant to Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006). But remember: the approved petitioner has numerous critical ongoing maintenance / compliance requirements to meet, such as periodic reporting, so as to maintain status.