9 Immigration Rules, Tips & Tools

To Hire IMG Physicians Fast

Presented by Cowles & Thompson

Immigration Practice Group

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Webinar Agenda

Immigration Rules,

Tips & Tools for

Hiring

• J-1 Physicians

• H-1B Physicians

• E-3 Physicians

Question & Answer

International Medical Graduate (IMG) Stats

9 Immigration Rules, Tips & Tools

Physician Immigration Overview

Hiring J-1 Physicians

Two Year Foreign Residency Requirement for J-1 Physicians

After residency or fellowship training is

completed, all J-1 physicians must return

to home country for two years or obtain a

waiver of this requirement before he or she can be employed in H-1B status or

adjust to permanent residence (“green

card”).

Home Country - Country of last citizenship or

permanent residence (even if dual citizenship

retained) before J-1 visa

1.0

Waiver of Home Residency Rule

Waivers of the Two-Year Foreign Residency Requirement (“J-1 Waivers”)

Interested Government Agency

(IGA) – State or Federal Agencies

Hardship – extreme hardship to U.S.

citizen/LPR spouse or children

Persecution –likelihood of harm to physician because of politics, religion, etc.

Interested Government Agencies (IGA)

Conrad 30 State Program

Department of Veterans Affairs

(VA)

United States Department of

Health and Human Services (HHS)

Appalachian Regional

Commission (ARC)

Delta Regional Authority (DRA)

HPSA/MUA Database

All IGAs require location in or service to underserved areas – Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA)

First step - check Health Resources and Service Administration website to determine HPSA or MUA designation

http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx

2.0

J-1 Waivers – Conrad 30 State Program

• Varying deadlines and opening dates • Evaluation process differ

• Unused slots do not rollover

• 10 FLEX slots available for non-underserved locations

30 slots per fiscal year – October 1 to

September 30

• Must be current – usually within six months.

• Some states have very specific requirements.

• Start early and recruit consistently!Recruitment efforts

• Priority usually given to primary care

• Hospitalists may be considered specialists

• Some states may restrict number of specialists slots

Primary care or specialty, depending

upon state

Conrad 30 State Program (cont.)

FLEX 10 Slots

• Check state program requirements

• Determine surrounding HPSA/MUA locations and gather patient data

• Provide evidence of sufficient number of patients for at least one additional physician

3.0

J-1 Waivers – Appalachian Regional Commission (ARC)

Covers Appalachian

regionwww.arc.gov and

not limit on number of

waivers per year

Extensive recruitment

required, including notices

to medical schools

HPSA and primary

outpatient care only (no

hospitalist)

$250,000 liquidated

damages clause required

J-1 Waivers - U.S. Department of Health and Human Services (DHHS)

Federal agency covers entire United States

• http://www.globalhealth.gov/exchangevisitorprogram/index.html#waiver

Clinical care waiver

• Primary care only in HPSA with 7 score

• Public health center, rural health clinic, or tribal medical facility qualifies

No limit on number of waivers per year but physician cannot have

completed residency more than one year before waiver

start date

J-1 Waivers – Delta Regional Authority (DRA)

Federal agency covering eight state region

• http://www.dra.gov/for list of eight states

$250,000 liquidated

damages in contract

Recruitment required 60 days minimum before

application, including notices

to medical schools

Primary care or specialty and no limit on number of waivers per

year

Contract Requirements for J-1 Waivers

Three year term required (minimum)Agree to start employment within 90 days of USCIS

waiver approvalNon-compete clauses generally prohibitedEmployment only – no independent contractor

agreements Liquidated damages permitted (required in some

instances, e.g. Georgia, ARC, DRA)All work locations (addresses) must be included in

contract

4.0

J-1 Waiver Employer Obligations

• Annual or semi-annual reporting and notifications

to state or federal

sponsoring agency

• Apply for H-1B and pay

salary that meets the prevailing wage; income

guarantees possible

• Employ physician only at

agreed locations and/or

underserved areas

Timeline for the J-1 Waiver to H-1B Process

Employer and Physician apply to

IGA

IGA issues recommendation to Department of State

(DOS) (1 to 3 months)

DOS issues recommendation to

USCIS (1 to 2 months)

USCIS issues final waiver approval I-612

(1 to 3 months)

H-1B petition filed and approved (1 to 4

months)

Total time – 4 to 12 months

Six Steps for Hiring J-1 Physicians Fast

Contact immigration

attorney early in the

process to help develop recruitment

plan

Start search for

candidates in their 2nd year of residency or one year

before completion of

fellow ship

Execute employment agreement by early Fall of 3rd year of residency or f inal year of fellow ship

Document current

recruitment efforts, including

advertising, recruiters,

referrals, etc.

Verify IGA program w aiver

requirements w ith attorney and gather

data to support w aiver

application

Plan to present the

w aiver application

on October 1 or f irst day

for acceptance

of applications

Hiring H-1B Physicians Fast

H-1B Physicians

IMG Physicians who completed residency or

fellowship with H-1B visa (no J-1)

J-1 Physicians who returned to home country

for two years after residency or fellowship

completed

J-1 Physicians who obtained hardship or

persecution waiver and seek employment

H-1B Physicians and the H-1B Cap

Limit of 65,000 new H-1B visas per fiscal

year (except Free Trade Act (FTA) nationals)

20,000 per fiscal year for persons who hold

US Master’s degrees or higher

Fiscal year runs from October 1 to

September 30

Employers may apply for H-1B on April 1

with a start date

of October 1

In 2014, over 170,000 new H-1B petitions

filed the first week of April

5.0

H-1B Numerical Limitations “H-1B Cap”

Who is subject to the cap?

– First time H-1B beneficiaries (employee)

– Beneficiaries who already hold H-1B status but were employed by cap-exempt employers

– Physicians who maxed out the 6 year H-1B limit, left the U.S. for one year, and wish to return

Avoiding the H-1B Cap

Cap-exempt employers

• Universities and non-profit petitioners affiliated with post-secondary educational institutions

• Government research organizations and non-profit petitioners affiliated with government research institutions

• For-profit employers who place physician at a non-profit, university-affiliated facility for at least 50% of work week

Cap-exempt beneficiaries

• Physicians who are beneficiaries of J-1 IGA waivers only (does not include hardship waivers or persecution waivers)

Avoiding the H-1B Cap

Concurrent H-1B Strategy

For profit employer offers part-time employment to the provider (ranges from 5 to 60 hours/week)

The start date of the H-1B must be a date before the physician’s cap-exempt H-1B expires.

Concurrent H-1B petition is filed and approved before current cap-exempt employment ends.

6.0

Employer Obligations for H-1B

• Employer must pay minimum of prevailing wage or actual

wage, whichever is higher, for the term of the H-1B– http://www.flcdatacenter.com/ - Department of Labor wage data for

prevailing wage – data often missing so prevailing wage request might be required and can delay the H-1B process

– Salary must be guaranteed at prevailing wage or actual wage –

productivity bonuses okay after minimum guarantee

– Contracts must offer same benefits and can have same requirements as

other physicians but cannot recover H-1B costs or other green card costs

• Employer must pay ACWIA fee of $750 (25 or fewer employees) or $1500 (greater than 25 employees) unless

exempt

• Payment of attorneys fees are “safe harbor” from DOL complaints

Employer Obligations for H-1B (continued)

• Physician must be on payroll within 30 to 60 days from H-1B approval date, regardless of pending hospital privileges or

other credentialing issues

• Physician must be an employee of sponsoring employer; however, independent contractor arrangement is possible if

physician forms corporation or LLC (self-employment)

• Employer must pay return transportation costs for physician if employment is terminated

H-1B Facts to Know

• H-1B status can be valid up to 3 years initially, renewable for 3 more years. Physician is eligible for another 6 years after 1

year outside U.S.

• 6 year maximum stay with some exceptions -

– 1 year extensions available after 6th year if green card

application pending for at least one year

– 3 year extension available if green card application is on hold

because of limited availability of green cards

• If new H-1B, physician cannot work until v isa is approved

• Dependent spouses (H-4) cannot work - 2014 proposed rule

may grant employment authorization to some H-4 spouses

7.0

H-1B Facts to Know (continued)

• If employee is already in H-1B status and changing employers, new employer must file H-1B petition

• May start new employment upon filing of new H-1B petition – need not wait for final approval

• Extenuating circumstances required for former J-1 physicians completing a J-1 waiver

Six Steps for Hiring New H-1B Physicians Fast

Finalize employment by early Fall of 3rd year of residency or f inal year of fellow ship

Determine w hether cap-exempt employer or employment

If competing for non-exempt H-1B, have contract in place by February so that H-1B petition can be filed on April 1

Encourage early application for medical license and credentials and prevailing w age

Ensure salary and benefits are w ithin prevailing w age requirement for location and that covers the H-1B term

Contact immigration attorney early in process

8.0

E-3 Visas for Australian Physicians

• Visa category for citizens of Australia for professional positions in the U.S. – 10,500 per year available

• Requires certified LCA• Physician must be licensed in

U.S.• 2-year validity; renewable

indefinitely• Dependent spouses can work

9.0

THE IMMIGRATION PRESCRIPTION

Step by step, this book will show you how

international medical graduates can legally practice medicine in the United States. You

will learn:

The various ways to waive the two-year foreign residency requirement for

the J-1 visas

The best paths to permanent residence (green card) and citizenship

Your responsibilities as a legal immigrant

How to get and maintain legal immigration status for family members

And more…!

For your free copy, email

abadmus@cowlesthompson.com

For immigration updates, visit

www.physicianimmigration.com

Legal Notice

Facts of individual situations differ.

The information provided here is general in nature and should not be relied upon for specific situations.

Consult with an experienced immigration attorney to get the right diagnosis and prescription for your specific situation.