navigating immigration: presented to

Navigating Immigration:Presented to

The Pennsylvania Association of Community Health Centers

Annual Conference

| 215.885.3600 | 215.885.0324 (fax) | www.goldhess.com | [email protected] |

101 Greenwood Ave. Ste 380 Jenkintown, Pennsylvania 19046

Lancaster, PALancaster, PAOctober 7, 2014October 7, 2014

By: Wendy Castor Hess, Esq.

&Karen M. Pollins, Esq.

What is an IMG?

• International Medical Graduate = physician who obtained a medical degree abroad;

• Includes U.S. citizens who chose to go to medical school abroad;

• Includes foreign born physicians who obtained Lawful Permanent Resident status or U.S. Citizenship;

• Our focus will be on IMGs who come to the U.S. to pursue training/employment on a nonimmigrant (temporary) visa…

Goldblum & Hess| 215.885.3600 | 215.885.0324 (fax) | www.goldhess.com |

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Recruiting Foreign Physicians & Providing Immigration

Sponsorship• Great tool for recruiting and retaining

qualified physicians!• Be careful not to discriminate in recruitment

process! Treat all applicants the same – ask the same permissible questions:– Are you legally authorized to work for [our health center]

in the U.S.?– Will you require visa sponsorship?

• Type of visa sponsorship will depend on foreign physician’s current and previously held visa status…


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Two Arms of Employment-Based Immigration Law for

Physicians

FH-1B O

EB-1 EB-2 EB-3J

Professional


Training

Can lead to U.S. Citizenship

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(temporary) (green card)

Nonimmigrant (Temporary)

Options for IMG Physicians:

H-1Bs, J-1s, J-1 Waivers and O-1s


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H-1B Temporary Worker• Nonimmigrant visa classification for IMG

trainees or practicing physicians to work for a specific employer

• Duration: up to 6 years (with exceptions)• H-1B cap (65,000 + 20,000 visas per fiscal

year – not enough to meet demand in recent years)– Certain institutions exempt from cap: (1)

colleges/universities, (2) affiliated nonprofits and (3) nonprofit government/research organizations

– J-1 Waiver beneficiaries also exemptGoldblum & Hess

| 215.885.3600 | 215.885.0324 (fax) | www.goldhess.com | 6

Requirements for H-1B Physicians

• Medical degree;• USMLEs – Steps 1, 2 and 3• ECFMG Certificate for English

language fluency (not required for Canadian physicians); and

• Valid state medical license. Note: Trainees with temporary licenses may be limited to H-1B status in 1-year increments (instead of the typical 3 years)


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H-1B Petition Process• Obtain certified Labor Condition

Application from U.S. Department of Labor• File H-1B Petition with U.S. Citizenship &

Immigration Services – detailing position and IMG’s qualifications (degree, USMLEs, ECFMG certification, license, etc.);

• Processing Time: – ~ 2 - 4 months via regular processing– 15 days via Premium Processing


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J-1 Exchange Visitor

• Nonimmigrant visa classification that permits IMGs to obtain post-graduate medical training

• Duration: program length + 30-day grace period (generally limited to 7 years)

• Pro: No annual cap!• Con: Requires return and physical

presence in home country or country of last residence for two years.


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Post-Training Options for J-1 Physicians

1) Go home– satisfy two year home residence requirement;

2) Obtain a waiver of J-1 two year home residence requirement;

3) Obtain O-1 or other nonimmigrant visa status (defers, does not eliminate, two-year home residence requirement); or

4) Obtain Asylum/Withholding of Removal.


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J-1 Physician Waiver Options

1) Federal Interested Governmental Agency (IGA);

2) State Department of Health – Conrad 30 Program;

3) Exceptional Hardship;4) Persecution.

*** IMGs are ineligible for “no objection” waivers.


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Federal IGA Waivers

• Direct clinical employment by Interested Government Agency: e.g. Department of Veterans Affairs (VA), Delta Regional Authority (DRA), Appalachian Regional Commission (ARC).

• Conducting outstanding research: Department of Health & Human Services (HHS)/NIH.


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ARC J-1 Waiver• Physician must have job offer at a HPSA facility in an ARC

county that serves Medicare, Medicaid and indigent patients• Limited to primary care • Need support of state DOH/governor• Physician must commit to working full-time (40 hours) for 3

years• Good faith recruitment effort in 6 months prior to waiver

application submission• Contract restrictions – non-compete prohibited; liquidated

damages required


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Conrad State 30 J-1 Waiver Program

• 30 slots per state per year• Physician needs job offer at a facility in

a federally-designated underserved area (HPSA, MUA/P)– Exception: 10 of the 30 may be for

physicians not located in federally-designated underserved areas, but who treat patients from such areas (FLEX)


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Federal Conrad 30 Requirements

• Must provide full-time (40 hours) clinical services (i.e. direct patient care)

• 3 year service term (fulfilled in H-1B status)

• Physician must agree to begin employment within 90 days of USCIS approval


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Other State-Specific Considerations

• Primary care versus specialty care• Application periods• Contract restrictions (e.g. non-

compete clauses)• Filing fees• Reporting requirements• Number of slots utilized• FLEX waiver policy


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J-1 Clinical Waiver Process• Register – Physician submits

Application to obtain case number with U.S. Department of State (DOS)

• Apply – Employer submits J-1 Waiver Application to State Department of Health (DOH)

• DOH recommends waiver to DOS• DOS recommends waiver to USCIS• USCIS issues final waiver approval


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Exceptional Hardship J-1 Waiver

• Hardship to U.S. Citizen or Permanent Resident spouse or child

• Need to show hardship if physician returns for two years either with or without qualifying relative

• Process:– I-612 Application filed with USCIS– Reviewed by DOS Waiver Review

Division

• Processing time: ~ 4 - 8 monthsGoldblum & Hess


Persecution J-1 Waiver

• Persecution based on race, religion, or political opinion

• IMG may also be eligible for asylum

• Process:– I-612 Application filed with USCIS– Reviewed by DOS Waiver Review

Division

• Processing time: ~ 4 - 8 monthsGoldblum & Hess


Immigrant (Permanent or “Green Card”) Options for IMG

Physicians: NIWs and PERMs


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Green Card Process • IMG physicians are usually in the Employment-

Based, Second Preference (EB-2) category for “advanced degree professionals”

• Generally a 3-step process(1) Labor Certification (PERM) Application filed with U.S. Department of Labor

(2) I-140 Immigrant Petition filed with U.S. Citizenship & Immigration Services (USCIS)(3) I-485 Application to Adjust Status filed with

USCIS (if priority date current…)


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Introducing the Visa Bulletin

Employment Based - October 2014 Visa Bulletin


Messages:

• “Priority Date”= date Application / Petition is filed with government o For those that require PERM, date PERM filed o For those that do not require PERM, date I-140

filed • There is a backlog for 2ND PREFERENCE

physicians born in India and China

Employment-Based

All Chargeability Areas Except Those Listed CHINA INDIA MEXICO PHILIPPINES

1st EB-1 Current Current Current Current Current

2nd EB-2 Current 15 FEB 05 01 JAN 00 Current Current

3rd EB-3 01 OCT 11 O1 APR 09 15 NOV 03 01 OCT 11 01 OCT 11

OTHER WORKER 01 OCT 11 22 JUL 05 15 NOV 03 01 OCT 11 01 OCT 11

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Labor Certification - PERM

• Employer must place ads (i.e. test the labor market) to show that it was unable to recruit minimally qualified, willing and available U.S. workers for the position

• Must show that IMG physician will be paid the “prevailing wage” in the area of intended employment


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National Interest Waiver (NIW)

• Waiver of labor certification requirement• IMG physician must agree to work in a

medically-underserved area (HPSA, MUA/P) for 5 years

• State DOH supports the NIW and issues a letter certifying that the medical service is in the “public interest”

• Good option for IMGs who already have 3-year service obligation pursuant to J-1 waiver


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CONCLUSION

• Although complex, immigration laws allow the recruitment of highly-qualified IMG physicians by U.S. employers!

• Keys for Success: • Careful screening and strategic

planning• Advance planning• Open communication • Participation by employer, IMG

and legal counsel throughout process


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navigating immigration: presented to

Documents

img physicians

visa statusgoldblum

exemptgoldblum hess

jprofessionalgoldblum

yearsgoldblum hess

qualified physicians

b status

foreign physicians current