Immigration Options for the Employment of International Physicians

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The Patient Protection and Affordable Care Act will do many things to alter health care delivery in the United States. One thing it will not do, however, is significantly increase the supply of physicians. The new law calls for training a few hundred additional doctors each year – this is not enough to ease the projected shortage of 200,000 physicians within the next decade. As a result, foreign-born, internationally trained physicians will continue to be a vital resource for physician recruiters and health-care employers.

Because foreign-born international medical graduates (IMGs) must obtain work visas to practice in the U.S., it is important for recruiters, foreign physicians and their prospective employers to understand the immigration options currently available to allow IMGs to live and work in the United States.

What is an IMG?

An IMG is any person who attended a non-U.S. or a non-Canadian medical school. Visa requirements only apply to non-U.S. Citizens. More than 25% of the doctors in active patient care in the U.S. today are IMGs. Each year, U.S.-based residency programs produce about 25,000 newly trained physicians. Of the 25,000 annual graduating residents, approximately 7,000 are IMGs. A large number of IMGs leave the U.S. when their programs are over, but as demand for their services increases, more and more employers are interested in keeping IMGs in the U.S. And Congress has facilitated this trend by making it considerably easier for employers to sponsor IMGs for visas.

What must IMGs do to practice in the United States?

  1. Obtain a Certificate from the Educational Council of Foreign Medical Graduates (ECFMG) showing equivalent knowledge to U.S. and Canadian medical school graduates.
  2. To obtain an ECFMG Certificate, the IMG must pass USMLE 1 (basic medical concepts) and 2 (clinical knowledge and clinical skills), as well as the ECFMG English language test.
  3. In several states, Physicians may take USMLE 3 (patient management) before beginning their residency programs. As discussed below, this is important for IMGs who want to enter the U.S. on a H-1B visa to do their residences.
  4. After completion of their residency programs, IMGs may apply for state medical licenses.

The J-1 Visa Option for the IMG

About two-thirds of foreign-born physicians coming to train in the United States enter on a J-1 visa. A J-1 visa is an "exchange visitor" visa for those seeking training in the United States, sponsored by the ECFMG. It provides the holder up to 7 years to complete graduate medical education.

However, once the education is completed, the holder must return to his or her home country for 2 years or obtain a waiver of the 2-year home residency requirement before he or she is eligible for to apply for a work visa or a green card.

What is a J Waiver?

A J waiver exempts the physician from the requirement that he or she return to their home country after completing their residency or fellowship in the U.S.

The most common method of obtaining a waiver is for the Physician to be sponsored by an Interested Government Agency (IGA), either federal or state based on public interest. All state health departments offer J-1 programs that permit sponsorships of 30 physicians per year in each of the 50 states – this is known as the "Conrad 30" program. Each state has their own criteria for which physicians they will sponsor. Federal waiver programs are also available. The major ones are administered by the U.S. Department of Health and Human Services (HHS), the Appalachian Regional Commission, the U.S. Department of Veterans Affairs (VA) and the Delta Regional Authority.

J Waiver Requirements

With the exception of the VA, all of the IGA waiver programs (State and Federal) require a participating Physician to work in a geographic area recognized by the HHS as being "medically underserved." HHS designates underserved areas in 2 databases: one for the Health Professional Shortage Areas (HSPA) and the other for Medically Underserved Areas (MUA).

Physicians are required to work full-time (40 hours per week) in a federally designated shortage area (HSPA and/or MUA) for 3 years, and the employing sponsor must demonstrate that the facility or institution has been unsuccessful in recruiting an American physician to fill the position. Failure to complete the 3-year commitment will result in the 2-year home residence requirement reattaching.

What happens once a J Physician gets a Waiver?

If a J Physician is sponsored by an IGA, the foreign national must change their immigration status to H-1B for temporary professionals and work for the sponsoring employer for at least 3 years. .

While there is an annual H-1B quota (85,000 visas) which quickly fills each year, Physicians who receive J waivers are exempt from the H-1B cap, as well as those who work at academic institutions and government or non-profit research institutions (e.g. most hospitals which are affiliated with U.S. Colleges or Universities are exempt from the cap).

IMGs Alternative to a J-1 Visa: H-1B Visa for Professionals

A fair number of IMGs come to the U.S. to do post-graduate training in H-1B status. Once that training is complete, these Physicians are generally eligible to transfer their H-1B status from their residency or fellowship program to a Hospital or Private Practice Employer.

These Physicians must pass the same requirements as J Physicians, as well as the USMLE 3 before applying for H-1B status. State licensure is also a prerequisite to H-1B status. H-1B status can be extended during the duration of the residency program, not exceeding 6 years. Like the J-1, an H-1B is an employer-sponsored visa.

IMGs Alternative to a J-1 Visa: O-1 A Visa for Physicians of Extraordinary Ability

Where the H-1B cap is an issue or if Physician does not want to immediately pursue a J-1 waiver, O-1 status as an alien of extraordinary ability in the sciences, which has been demonstrated by sustained national or international acclaim, may be an option for those highly qualified foreign Physicians.

IMGs Alternative to a J-1 Visa: Physicians as E-2 Investors

A foreign Physician who invests in a medical practice may obtain an E-2 visa if from a treaty country and may be involved in patient care if licensed to practice in that state to practice medicine.

How do IMGs qualify for permanent residence (green card) in the U.S.?

There are several approaches to obtaining a green card.

Second-Preference Employment Based Immigration Category (EB-2) with Labor Certification

The most common way of obtaining permanent residence status through employment is through the PERM Labor Certification process. It requires demonstrating to the U.S. Department of Labor that no U.S. Citizen or permanent residence is qualified, willing or able to perform the job. This requires recruitment including advertising the position in a major daily newspaper in the community where the Physician is employed and advertising in a major medical journal. The PERM application is taking 6 months to 1 year to be adjudicated. The PERM application must be approved before the Employer may sponsor the Physician and his or her family for permanent residence before the United States Citizenship and Immigration Services.

EB-2 with National Interest Waiver
Alternatively, a Physician who commits to be employed in a federally designated underserved area for a minimum of 5 years can bypass the PERM Labor Certification process and apply for permanent residence through a National Interest Waiver. This Waiver makes sense for Physicians who are already satisfying a 3-year J-1 waiver obligation, as that time counts towards the 5-year National Interest Waiver commitment.

First-Preference Employment Based Immigration Category (EB-1)
Due to the shortage of immigrant visa numbers for nationals of India and China in the EB-2 category, the EB-1 immigrant category for foreign nationals of extraordinary ability is becoming increasingly popular for those highly qualified IMGs, as the visa numbers are current for all countries. In addition this category allows for self-sponsorship and bypasses the Labor Certification requirement. The qualification threshold is high, but this category remains a viable option for those Physicians who meet the criteria.

In Conclusion

In light of the shortage of healthcare professionals, which is only expected to increase, International Medical Graduates and Foreign Physicians are a good option for supplementing existing staff and addressing unmet needs in the health care industry.

 

Topics:  Affordable Care Act, DOL, E-2, EB-1, H-1B, Healthcare, HHS, Highly-Skilled Workers Visa, Hiring & Firing, J-1 Visas, O-1 Aliens of Extraordinary Ability, Physicians

Published In: Health Updates, Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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