Blawg

April 2, 2014 by Rebecca Esmi

Waiver of 2-year rule: Option based on persecution.

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.

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.

March 20, 2014 by Rebecca Esmi

Happy Nowruz OFAC policy warms with new General License G

On March 19, 2014 in a gesture of rapprochement that may be timed to coincide with Persian New Year “Nowruz,” Deputy Director Barbara Hammerle introduced the debut of General License G (GLG). The new GLG reflects a warming of educational policy and high-lights are summarized below, but perhaps the most notable change is that it authorizes banks and private lenders to transact funds transfers and process student loan payments from persons in Iran. Notes 2 and 3.

Summary high-lights:

a. Accredited post-secondary institutions can enter into academic exchange programs with those in Iran;

b. Educational services.

1. U.S. academic institutions and their contractors are authorized to export their services:

(i) As to filing and processing applications and accepting payment for same, as well as for tuition, from persons in Iran (or residents of Iran);

(ii) To recruit, hire, or employ Iranian nationals as teachers so long as the proper visa is obtained;

(iii) Providing selected undergraduate coursework through online learning to Iranian nationals;

2. U.S. students may participate in coursework in Iran in selected fields or participate in noncommercial research.

3. In support of several charitable educational activities such as educational reform, access to education, and the cultivation of literacy.

4. U.S. persons are authorized to administer to Iranian nationals professional certificate exams as well as university entrance exams, to include standardized multiple-choice, and provide all ancillary services needed to matriculate a student at a U.S. institution.

The GLG likewise allows the exportation of software and hardware that supports personal communication (Note 5), which is already in place, but also authorizes U.S. persons to participate in publishing-related activities. Note 4. As always when it comes to OFAC matters, great care must be taken to comply with all rules; e.g., here it should be noted that exportation of technology in contravention with EAR99 are expressly prohibited.