There are diverse views as to whether there are too many or too few foreign doctors in the United States. This controversy is at the heart of a rather convoluted scheme of immigration laws that apply only to doctors.
On the one hand, foreign doctors face restrictions faced by no other profession. On the other hand, the immigration law is responsive to the widely held belief that, whether there are too many or too few foreign doctors in the U.S., there are clearly areas of shortages of physicians. The immigration laws try to address this maldistribution of medical services in parts of the United States by giving physicians incentives to serve in shortage areas.
Most physicians enter the United States on either J-1 or H-1B visas. The H-1B is often considered more beneficial to the physician, whereas the J-1 may be the only option offered by certain hospitals and medical schools because of fewer employer responsibilities and liabilities.
The J-1, or exchange visitor visa, is sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG). This is a quasi-governmental organization that has been set up to facilitate and execute policies established by Congress and the administrative agencies that implement the immigration laws. ECFMG places strict limits on length of visa, change in programs, and moonlighting.
Most doctors on J-1 visas come to the U.S. for ‘graduate medical education or training’. Such doctors are subject to a requirement that they return to their home countries for two years prior to obtaining an H visa or permanent residence status. As will be discussed below, it may be possible — but often difficult — to waive that requirement. From the hospital’s point of view, the J-1 visa has advantages over the H-1B visa, including:
- No employer sponsorship;
- No employer recordkeeping;
- No institutional liability;
- No prevailing wage requirement;
- No employee notice requirement;
- Substantial fees affiliated with H-1B visas do not have to be paid.
The H-1B visa must be sponsored by the employer. It does require various levels of employer recordkeeping, posting notices to employees, payment of prevailing wage and substantial fees paid to the government. The maximum approval period is three years, with a three year extension possible. In order to qualify, a physician must have passed Parts 1, 2, and 3 of the U.S. Medical Licensing Examination (USMLE) unless the doctor is of national renown. In addition, the doctor must meet any relevant state licensing requirements.
The big advantage of the H-1B visa to the foreign physician is the absence of a two year return requirement. In addition, the H-1B physician has greater flexibility, including the possibility of moonlighting, and the option of full-time or part-time employment. While the spouse of a J-1 may be employed in the United States, the spouse of an H-1B cannot be employed.
Each hospital makes its own policy decision regarding whether to require foreign physicians to obtain a J-1 visa, or give the physician the option of the H-1B visa. Despite the increased potential for liability on the part of the employer who sponsors H-1Bs, the availability of the H-1B visa may attract a higher quality of foreign physician to that hospital.
In some cases, neither the hospital nor the foreign physician has a choice. Congress has set a quota limitation on the number of H-1B visas that can be issued in any year. If no H-1B visa is available at the time the hospital wishes to hire the foreign physician, the J-1 may be the only option. However, the quota does not apply to universities and to non-profit hospitals and other non-profit institutions affiliated with universities.
If the H-1B visa is not available, either because of quota limitations or possibly because the physician has not passed USMLE Parts 1, 2, and 3, the O-1 visa may be a possibility. The O-1 visa is only available to a doctor of ‘extraordinary ability,’ defined as a doctor considered to be at the top tier of his or her peers in a specific field. Although employer sponsorship is required, the other drawbacks of the H-1B visa do not apply — there are no posting requirements, there are no prevailing wage requirements, there is no institutional liability issue, there is no requirement of a public examination file and there are substantially lower government fees. The O-1 visa can be approved for three years with no limits on the number of extensions. There are no quotas on O-1 visas. Spouses of O-1 physicians cannot work in the U.S.
Physicians who are citizens of Canada or Mexico are eligible to work in the United States in TN-1 status, but are limited to teaching or research with only incidental patient contact while on the TN-1 visa. The advantage of the TN-1 is that it can be processed in one day at the port of entry. However, it is limited to one year at a time.
A doctor who enters the U.S. on an H-1B, O-1 or TN-1 visa is able to proceed with the permanent residence (green card) process as soon as he or she qualifies. Doctors on J-1 visas, as previously mentioned, have to return to their home countries for two years before they can obtain permanent residence, unless they can obtain a waiver of the two year home residence requirement or unless they can obtain a visa that does not require a waiver of the two year home return requirement. Although the H-1B visa is not available to the J-1 physician, the O-1 or TN-1 visa might be available without a waiver of the two year home residence requirement.
However, if the physician does wish to obtain a waiver of the two year return requirement, there are three possibilities. Two of the possibilities are used infrequently; the third possibility is normally the focus of the foreign physician’s concentration. The two types of waivers that apply in very limited cases are the persecution waiver and the exceptional hardship waiver. The persecution waiver is available if the doctor would be subject to persecution in his or her home country. The exceptional hardship waiver would be available if the doctor has a U.S. citizen or permanent resident spouse or child who would suffer ‘exceptional hardship’ both if the spouse or children remain in the U.S. and if the spouse or children return to the home country with the J-1 doctor. The focus is on the U.S. citizen or permanent resident spouse or child, and not on the J-1 doctor. If is important to note that ‘exceptional hardship’ is defined very strictly — most J-1 physicians married to U.S. citizens with a U.S. citizen child are not able to obtain the waiver because the hardship is considered ‘normal’ and not ‘exceptional.’
The other waiver option is based on a recommendation from an interested government agency. For the purpose of this waiver, the physician must choose either a research track or a clinical track. If pursuing a research track, the physician’s employer must file an application for a waiver with an appropriate government agency, almost always the United States Department of Health and Human Services’ Exchange Visitor Waiver Review Board. The application, with supporting evidence, should prove the importance of the research, the critical contribution of the foreign physician to the research, the credentials of the foreign physician, and the negative impact to the research project if the foreign physician returns home for two years. The process is a lengthy and document-intensive process. Although the HHS approval is technically only a ‘recommendation’ to the Department of State, which then ‘recommends’ approval to U.S. Citizenship and Immigration Services, as a practical matter, the HHS approval normally results in approval of the waiver.
Physicians on a clinical track must agree to practice in a Health Professional Shortage Area or a Medically Underserved Area for a minimum period of three years to be eligible for a waiver. Waivers can be sponsored either by a state Department of Health, or an appropriate federal government agency. Sponsorship by the state is called the Conrad 30 Program. Although most states participate, each state has different rules, different timing and different allocation procedures for the maximum 30 waiver positions available to each state each year. Some states limit the program to primary care physicians, while others allow specialty or subspecialty positions. Most states require a significant period of recruitment to prove the unavailability of U.S. doctors. The physician must remain at the facility in H-1B visa status for three years in order for the waiver to be finalized and effective.
A limited number of federal programs are also available. They include: the Veterans Administration, the Appalachian Regional Commission, the Department of Health and Human Services and the Delta Regional Authority. Most or all have common requirements: with the exception of the Veterans Administration, all the federal programs require the physician to work 40 hours per week in a Health Professional Shortage Area or Medically Underserved Area. Again with the exception of the Veterans Administration, the other agencies require the physician to practice in primary medical care. All programs require proof of significant recruitment for U.S. workers and require the physician to be in H-1B status at the facility for three years.
The Veterans Administration waiver requires the doctor to hold at least a five/eighths staff appointment at a VA facility. The Appalachian Regional Commission applies to doctors working in shortage areas in rural counties in thirteen states within Appalachia — from New York in the north through Alabama and Mississippi in the south and as far west as Ohio. The Delta Regional Authority program applies to counties along the Mississippi Delta in Alabama, Arkansas, Louisiana, Mississippi and Tennessee. The Department of Health and Human Services clinical program is a rather restrictive program limited to primary care in only the most severe shortage areas.
Physicians who obtain a waiver of the two year home residence requirement, as well as physicians who never had J-1 visas, may be eligible to apply for permanent residence status and eventually U.S. citizenship. In some cases, they may be able to apply based upon a U. S. citizen spouse, an application for asylum, or a substantial investment in a business in the United States that employs ten U.S. citizen or permanent resident workers. Physicians who meet the O-1 extraordinary ability standard may be able to apply for permanent residence through a self-sponsorship process by proving their national or international renown in their field of expertise, whether it is research, clinical or a combination of both. Physicians who are amenable to working full time in family or general medicine, pediatrics, internal medicine, OB/Gyn or psychiatry in a Health Professional Shortage Area or a Medically Underserved Area or for a VA facility for a minimum of five years may be able to obtain permanent residence through the national interest waiver program.
Finally, all other physicians who wish to seek permanent residence status must go through the labor certification application procedure. This procedure requires an employer-sponsor to undertake various recruitment efforts in order to prove to the U. S. Department of Labor that the foreign physician is not taking a position away from a qualified and interested U.S. citizen or permanent resident physician.
The representation of foreign physicians and the hospitals and medical practices that employ them is a complex subspecialty within the immigration law field of practice. The advisor must be aware that rules that apply to other professions do not necessarily apply in the representation of physicians. Nevertheless, with careful advance planning, the foreign physician is often able to accomplish his or her immigration objectives in the U.S.