Immigration Prescription for Physicians 2014

Presented by Cowles & Thompson

Webinar AgendaJ-1 Physicians and

Waivers

H-1B Visa Fundamentals for Physicians

Permanent Residence (Green Card)

Questions & Answers

Physician Immigration Overview

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”).

Two-Year Home Residency Rule

Waiver of Home Residency Rule

Three Types ofJ-1 Waivers

Interested Government Agency (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)

J-1 Waivers – Conrad 30 State Program

• Varying deadlines and opening dates • Evaluation process differ• Unused slots do not rollover• Proof of recruitment required

30 slots per fiscal year – October 1 to September 30

• http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx - HPSA or MUA designation website

• 10 FLEX slots available for non-underserved areas

Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA)

• Some states require four or more years• Non-compete not allowed• Agree to start date within 90 days of waiver

Three year minimum contract required

• 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

J-1 Waivers – Appalachian Regional Commission (ARC)

Covers Appalachian

regionwww.arc.gov

Three year contract and

extensive recruitment

required

HPSA and primary

outpatient care only (no hospitalist)

$250,000 liquidated damages

clause required

No limit on number of

waivers per year

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

Federal agency covers entire United States• http://www.globalhealth.g

ov/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

• Three year contract and proof of recruitment required

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

Three year contract required

and $250,000 liquidated damages required

HPSA or MUA work location

and recruitment required 60 days minimum before

application

Primary care or specialty and no limit on number of waiversyear

J-1 Waivers – Department of Veteran Affairs (VA)

Primary care or specialty

1 year contract

minimum but 3 years work required by

USCIS

No limit on number of

waivers per year

Direct application by

VA to Department of

State

J-1 Waiver Obligations You Must Know

Physician must work in H-1B status for minimum of three years

Physician must be a an employee, not independent contractor, of sponsoring employer

Employer and physician must submit periodic reports to state or federal health agency

Physician cannot change employer unless extenuating circumstances, e.g. termination by

employer . Personal reasons usually not valid for change of employer

Physician cannot become a permanent resident until waiver service is completed

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

Strategic Planning for J-1 Physicians

Start job search immediately after 2nd year of residency or

one year before completion of

fellowship

Target employers located in HPSA/MUA

or FLEX locations

Sign contract by early Fall of 3rd year of

residency or final year of fellowship

Meet with qualified immigration attorney

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

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)

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– 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 visa is approved• Dependent spouses (H-4) cannot work - 2014 proposed

rule may grant employment authorization to some H-4 spouses

Strategic Planning for H-1B Physicians

Start job search immediately after

2nd year of residency or one

year before completion of

fellowship

Target cap-exempt employers and apply early for

medical license

Finalize employment by early Fall of 3rd

year of residency or final year of

fellowship

If competing for cap-subject H-1B, have

contract in place by February so

that H-1B petition can be filed on

April 1

Meet with qualified immigration attorney

Lawful Permanent Residence (Green Card)

PERM Labor Cert

National

Interest

Waiver

EB-1

Relative

Petition

PERM Labor Certification

Employer must show no available and qualified U.S. citizen or permanent resident physician through local recruitmentEmployer must show ability to pay prevailing wagePhysician must be qualified at the time of filing of labor certificationPhysicians are EB-2 category

National Interest Waiver

• Two types– General – physician’s research work is in

national interest– Physician – 5 years medical care in HPSA

or MUA – specialties accepted

• Self-sponsored and self-employment possible

• Physicians are EB-2 category

EB-1A Extraordinary Ability

Basic Requirements• Must show sustained national or

international acclaim in applicant’s field of endeavor

• Overall evidence must show applicant has “risen to the top of the field”

• Must show prospective contribution to the United States

• Can be self-sponsored but must show prospective employment in the U.S.

EB-1A Extraordinary Ability

Must Meet 3 of 8 Criteria• National or internationally recognized prizes or

awards• Membership in organizations requiring

outstanding accomplishments• Published materials in major or professional

media about applicant’s work• Judging the work of others, individually or on a

panel• Original contributions of major significance to

the field

EB-1A Extraordinary Ability

Must Meet 3 of 8 Criteria (cont)• Authorship of scholarly articles• High salary or compensation as

compared to others in the field• Performance in a leading or critical role

for distinguished organizations• Other comparable evidence

Relative Sponsorship

Immediate relative USC spouse

USC child over 21

Preference Relationship USC or LPR parent

LPR spouseUSC brother or sister

Timeline

Immigrant Visa Number must be available . Visa backlog delays

Physicians with IGA J-1 waivers cannot obtain

permanent residence before

completion of service

Permanent Residence

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.

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, emailmbadmus@cowlesthompson.comFor immigration updates, visitwww.physicianimmigration.com