physician immigration

April 2, 2014 by Rebecca Esmi

Two year rule waiver option: Hardship

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.

April 2, 2014 by Rebecca Esmi

EB-1: A high legal standard reserved for highly-qualified physicians

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

and more.

It is essential that great care be taken to ensure the proper evidence is assembled and organized, thereby facilitating USCIS review.

April 2, 2014 by Rebecca Esmi

National Interest Waivers: a physician EB-2 self-petition immigration option

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.

April 1, 2014 by Rebecca Esmi

Conrad-30 Program is a valuable physician-immigration option.

Senator Kent Conrad from North Dakota introduced this valuable legislation back in 1994, and it has been amended and reauthorized several times. Most recently, in 2004, the so-called FLEX-5 provision was added to be superseded in 2008 with FLEX-10. More on this later.

The current framework provides that each of the 50 states plus DC, Guam, and Puerto Rico can bring in 30 foreign physicians to serve in federally-designated underserved areas. Although each program has unique characteristics, each program must meet the following mandates:

1. Within 90 days of waiver receipt, physician must begin employment.

2. Term of employment must not be less than three years.

3. Patients served must be in federally-designated underserved areas.

4. Employment must be full-time.

Shortage of the specialty must be documented if non-PCP. See INA Sec. 214(l)(l). Having met these statutory mandates, states are free to set their own requirements, an illustration of federalism at work. In actuality, there is a great deal of variation between programs. It is at this level that policy decisions can help or worsen physician shortages by state.

December 5, 2013 by Rebecca Esmi

Federal IGA waiver recommendations: Alphabet Soup.

There are numerous areas and populations in the U.S. that are under-served by physicians. Forecasters predict that this situation will only worsen in the coming years, largely due to the triple threat of demographics (aging boomers), healthcare reform, and reimbursement policy changes.

An ideal means of providing physicians to cover the underserved is through the various immigration programs that enable foreign national medical residents to immigrate to the U.S. Each and every foreign medical resident in the U.S. for graduate medical education (GME) or training on a J-1 exchange visitor visa is subject to the two-year home residency rule or “two year rule.” See INA 212(e), 212(e)(iii). The rule requires foreign national medical residents to return to their home country for two years before coming back to the U.S. This requirement can present an earth-shattering obstacle to these medical residents who may have put down roots and developed romantic and business relationships that call for them to stay here.

Federal interested governmental agency (IGA) programs are one of the win-win immigration programs that enable foreign national medical residents to immigrate by having these physicians serve the underserved, typically for a minimum of three years before applying for permanent residency. A full listing of IGAs can be accessed in The United States Government Manual at: www.gpoaccess.gov/gmanual/browse-gm-06.html.

The IGA’s role is to recommend to the U.S. Department of State (DOS) that the two year rule be waived for a particular foreign national medical resident. After analyzing the recommendation as to policy and program and assuming concurrence, the DOS seconds its approval to USCIS – the final decision-maker in the process. See INA 212(e). The specifications vary greatly by program, and several of the more well-known IGA programs include:

Department of Veterans Affairs (VA) – see www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1219

Department of Health and Human Services (HHS) – see www.globalhealth.gov/exchangevisitorprogram/index.html (Supplement B – Clinical Care)

Appalachian Regional Commission (ARC) – see www.arc.gov/index.do?nodeId=24

Delta Regional Authority (DRA) – see www.dra.gov/programs/doctors/