immigration options for healthcare professionals 0113 gree… · overview of us immigration u.s....
TRANSCRIPT
IMMIGRATION OPTIONS FOR
HEALTHCARE
PROFESSIONALS
PRESENTATION FOR THE MGH POST-
DOCS ASSOCIATION
January 13, 2014
Presented by :
I ando l i & Desa i , PC
Richard Iando l i Prasant Desa i
Eo in Re i l l y Made l ine C ron in
www. iando l i .com
www.iandoli.com 2
OVERVIEW OF US IMMIGRATION
U.S. CITIZENS – Birth or Naturalization
FOREIGN NATIONALS
Lawful Permanent Residents – Immigrants
(“Green Card” Holders)
Nonimmigrants – Persons temporarily
permitted to in U.S. – F’s, J’,s O’s & H’s
Refugees/Asylees/TPS
Persons present without lawful status
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POPULAR NONIMMIGRANT WORK
VISAS
H-1B – Temporary professionals
H–1B1 - Singaporeans/Chileans
TN – Canadians & Mexicans under NAFTA
E-3 – Australians only
E-1/E-2 –Treaty traders/Treaty Investors
O– Persons of extraordinary ability
L – Intra-company transferees
J – Exchange scholars/trainees
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TWO YEAR HOME RESIDENCE REQUIREMENT
FOR J-1 EXCHANGE SCHOLARS & CLINICIANS
•The 2-year Home Residency Requirement (2YHRR) applies to three types:
I. J-1 “Physicians” receiving medical training, clinical residency, or fellowship;
II. J-1 visitors who receive government funding;
III. Home country is in need of their skills/talents (“Skills List”)
MAY NOT FILE FOR H-1B, L-1 STATUS, OR PERMANENT RESIDENCE UNLESS FULFILL OR WAIVE 2YHRR
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J-1 WAIVERS
2YHRR can be waived
Four types of waivers:
i. Persecution
ii. Exceptional Hardship
iii. “No objection” statement (not
applicable to Medical Trainees)
iv. Interested Government Agency (IGA)
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J-1 WAIVERS
BASED UPON PERSECUTION OR HARDSHIP
Persecution: J-1 will suffer persecution on account of race, religion, or political opinion if he/she returns to the home country or country of last permanent residence
Hardship: 2YHRR waived if it would subject J -1’s U.S. citizen or permanent residence spouse and/or child to “exceptional hardship”
Both types of waivers are filed first with Department of Homeland Security (DHS) California Service Center via Form I-612
If DHS approves, it then requires Department of State concurrence
Timing issues
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J-1 WAIVER
“NO OBJECTION”
NOT available to foreign medical graduates engaged in medical education or training
Is available to J-1 physicians whose U.S. programs involve observation, consultation, teaching, or research.
Process:
Department of State Case Registration;
Request to home country’s embassy in Washington, D.C.; and
Coordination with US Citizenship & Immigration Services
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J-1 WAIVERS
INTERESTED GOVERNMENT AGENCY
FEDERAL GOVERNMENT AGENCIES
CONRAD WAIVER: Clinical Physician Waivers
- Department of Health & Human Services – primary
care. Work at facility located within an underserved
area
- Conrad 30 Programs – Each state may sponsor up to
30 physicians per year
- Specialists
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INTERESTED GOVERNMENT AGENCY
RESEARCH-BASED J-1 WAIVER
Employer files application requesting gov’t support for waiver
Must demonstrate:
Scientific interest
J1’s specific research role in program
Extent of leadership role of J1 holder, other factors
Unique qualifications of J-1 holder
Review Process:
1. Executive Secretary of HHS
2. Technical review by HHS scientists
3. HHS Waiver Review Board
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O-1 NONIMMIGRANT VISA
Temporary work visa, eligibility requirements similar
to EB-1(a) (person of extraordinary ability)
permanent residence category
Must be sponsored by a U.S. employer or agent, for
an "event“ (scientific projects, academic years,
lecture series, conferences, business projects, or
tours)
Maybe only option for those on J -1 visa with no time
left and who are subject to the two-year home
residency requirement
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LAWFUL PERMANENT RESIDENT-
IMMIGRANT CATEGORIES
Employment Based
Family Based
Diversity Lottery
Investment
Asylum/Refugee
Cancellation of Removal
Registry
Others: CIR, VAWA, Etc.
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CATEGORY & COUNTRY QUOTA BACKLOGS
Significant backlogs in Employment -based cases have
developed – Visa Bulletin – FEBRUARY 2014
http://travel.state.gov/visa/bulletin/bulletin_1360.html
CATEGORY All OTHER
COUNTRIES
CHINA
MAINLAND
BORN
INDIA MEXICO PHILLIPPINES
1st C C C C C
2nd C 08 Jan 09 15 Nov 04 C C
3rd 01 Jun 12 01 Jun 12 01 Sep 03 01 Jun 12 15 Apr 07
Temporary Status
Must always maintain temporary status and not work without authorization until time to file for adjustment of status to permanent residence
Typical categories: F1, J1, O-1, H-1B
Typically may not leave US once residence application filed unless you have received ‘Advance Parole’ permission to travel
Gaining Residence Status
Process starts with fil ing a labor certification app. or immigrant petition on Form I -140. This gains a Priority Date (PD)in quota line.
May concurrently file residence app on Form I -485 with the Form I -140 if PD is “current” (see Visa Bulletin). May also file for work and travel permission with Form I -485.
GREEN CARD PROCESS GOING FROM TEMPORARY
TO PERMANENT STATUS
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MAIN EMPLOYMENT BASED PERMANENT
RESIDENCE CATEGORIES
EB-1(a) Person of Extraordinary Ability
EB-1(b) Outstanding Professor or
Researcher
EB-1(c) International Manager or
Executive
EB-2 Masters Degree/Exceptional Ability
EB-3 Bachelors Degree/Other Workers
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EB-1(A): PERSON OF
EXTRAORDINARY ABILITY
The EB-1(a) category is for aliens of extraordinary ability in the sciences, arts, education, business or athletics.
May Self-Sponsor.
Same criteria as O-1 Nonimmigrant category but more rigorous USCIS adjudication
STEP 1: MUST HAVE RECEIVED A MAJOR PRIZE – OR - MEET AT LEAST THREE CRITERIA SET OUT IN REGULATIONS STEP 2: FINAL MERITS DETERMINATION BOTH STEPS ARE SUBJECTIVE
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EB-1(A): PERSON OF EXTRAORDINARY
ABILITY, CRITERIA–TWO STEP APPROACH
MUST PROVE:
Receipt of "major, internationally recognized award, such as the Nobel Prize,
OR
MUST MEET 3 OF THE FOLLOWING:
• Receipt of lesser nationally or internationally recognized prizes/awards
• Member in associations that demand outstanding achievement
• Published material about you in professional publications
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EB-1(A) STEP 1:
MEETING THE CRITERIA
• Judged the work of others, either individually or on a panel – peer reviewer
• Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance
• Authorship of scholarly articles in professional
publications or other major media • Leading or critical role in distinguished organizations • Commanded large salary
• Miscellaneous, other comparable evidence
EB-1(A): PERSON OF EXTRAORDINARY
ABILITY, CRITERIA (CONTINUED)
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“USCIS will evaluate all of the evidence in the record
to make a final merits determination of whether or
not the petitioner, by a preponderance of the
evidence, has demonstrated that the beneficiary has
sustained national or international acclaim and that
the beneficiary’s achievements have been recognized
in the field of expertise, indicating that the
beneficiary is one of that small percentage who has
rise to the very top of the field of endeavor.”
EB-1(A) STEP 2
THE FINAL MERITS REVIEW
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EB-1(B) OUTSTANDING PROFESSOR OR
RESEARCHER
• Professor or Researcher is recognized internationally as outstanding in the academic field.
• Must have sponsorship by and an offer of employment from a U.S. university or institution of higher learning or private research entity (with at least 3 f/t researchers) for a tenure or tenure-track teaching position in your academic field, or a permanent research position in your academic field;
AND
At least 3 years of teaching and/or research in your academic field; AND
At least two of the following eligibility criteria:
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EB-1(B) ELIGIBILITY CRITERIA
(CONTINUED)
Receipt of major prizes or awards for outstanding
achievement
Membership in associations that require their members to
demonstrate outstanding achievements
Published material in professional publications written by
others about the alien's work in the academic field
Participation, either on a panel or individually, as a judge of
the work of others in the same or allied academic field
Original scientific or scholarly research contributions in the
field
Authorship of scholarly books or articles (in scholarly journals
with international circulation) in the field
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EB-2 MASTERS DEGREE
Have U.S. Masters Degree (foreign equivalent
accepted) AND
Labor Certification, OR
National Interest Waiver (NIW) – 2 types:
- General
- Physicians only
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NATIONAL INTEREST WAIVER
GENERALLY
MUST PROVE THAT YOU ARE EXCEPTIONAL
MAY SELF-SPONSOR
NO LABOR CERTIFICATION REQUIRED
MUST DEMONSTRATE:
a. your work is intrinsically valuable
b. your work is national in scope, and
c. your role overcomes the Government’s
interest in protecting the U.S. job market
Physician Researchers in various areas of biomedical
research supported by National Institutes of Health
grants
Endocrinologist with some research, not supported
by NIH grants but a key physician at leading hospital
Others?
EXAMPLES OF SUCCESSFUL NATIONAL
INTEREST WAIVER CASES
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NATIONAL INTEREST WAIVER
PHYSICIANS
5-year commitment to work in a Medically Underserved Area (See J-1 Conrad Waiver)
State Department of Public Health must agree that work is in the public interest
5 years can be as an H-1B or O-1 or with Employment Authorization
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PERMANENT EMPLOYMENT CERTIFICATION
(LABOR CERTIFICATION)
Labor Certification is the authorization by the U.S. Department of Labor for a U.S. employer to sponsor an alien worker
after a search for qualified workers
at the minimum education, skills and training necessary to do the job
at the required wage
The current method of Labor Certification is called “PERM” and is done on-line
Perm cases are currently averaging under 4 to 12 months after filing
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SPECIAL HANDLING
LABOR CERTIFICATION
Special Handling: available only to colleges and universities.
Requirements:
Position offered must be full time and permanent
Position must involve some classroom teaching
Research positions may qualify as long as there is some teaching component
Institution must demonstrate that sponsored worker was the most qualified candidate (specific procedures apply)
Must file application within 18 months of selection (generally, the offer date)
Pre-certified occupations:
Group I: Nurses, Physical Therapists
Group II: Alien of exceptional ability in sciences or arts (requirements similar to extraordinary ability)
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SCHEDULE A
LABOR CERTIFICATION
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RECAP OF PREFERENCE CATEGORIES
EB-1’s do not need Labor Certification (EB-1A’s may self sponsor. EB-1B’s require a sponsor.)
EB-2’s do need Labor Certification & sponsorship except those with a National Interest Waiver (NIW’s may also self sponsor)
EB-3’s do need Labor Certification
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FAMILY BASED
Sponsored by U.S. Citizen: Parent Spouse Son or Daughter – married or unmarried Sister or Brother Child (under 21) Refer to Visa Bulletin for family-based backlog information
Immediate relatives (IR) of U.S. Citizens: Parent, spouse or unmarried minor child (under 21) of a U.S. Citizen
- The sponsor of a parent must be 21 years or older - There is no annual quota for IR’s - IR’s who have been inspected & admitted may apply for adjustment of status in the U.S., even if they violate their status or work illegally Sponsored by Lawful Permanent Resident Spouse - Unmarried son or daughter
Refer to Visa Bulletin for backlog information
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FAMILY BASED IMMIGRATION
(CONTINUED)
• 13-year, multi-stage path to citizenship for 12 million undocumented
• Dual intent for student visa holders
• Increasing the H-1B quota
• Authorizing employment for spouses of H-1B visa holders
• Recapturing unused green card numbers
• Increase in Immigrant Visa quotas
• Adding new ‘merit -based’ immigrant & non -immigrant categories
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COMPREHENSIVE IMMIGRATION REFORM
(CIR) POSSIBILITIES