Part II: Physicians- Path to Legal Permanent Residency

The Part I of the article covered the journey of an International Medical Graduate (“IMG”) from seeking Residency to an H-1b Visa.  IMG’s who pursue residency program in a J-1 visa are subject to the two (2) years of home residency requirement.  In order to avoid the home residency requirement, the IMG is required to obtain a waiver, and one of the most commonly sought waiver application is based on the IMG agreeing to working in a medically underserved area. Upon commencing the job on an H-1b visa, the IMG can now plan on seeking Legal Permanent Residency Status, commonly known as Green Card.

Most IMGs have two (2) options to get their green card.  The most commonly used approach is to seek the green card through Labor Certification process under PERM (“PERM Process”). This also the most common way for majority of the temporary workers on a non-immigrant work visa to get their respective green card. This approach requires the employer to sponsor the application process. The process involves the employer to first to prove to the Dept. of Labor (“DOL”) that there are no qualified U.S. physician available to take up the job.  The PERM process requires the employer to first seek a prevailing wage from the DOL, and upon ensuring that they are paying or can afford to pay the salary, start placing recruitment advertisement the area of employment in five different places that includes a major Sunday newspaper, State Job Posting agency, and any three (3) of the following ten (10) medias: employer’s website, outside job website such as ‘Monster.com, professional journals such as ‘JAMA (Journal of American Medical Association)’, employee referral policy, Radio and TV ad, Job fair, On campus recruiting, private employment firms, employee referral policy provided there is an inducement for referrals, and local or ethnic newspapers.

After this extensive recruitment activities, if the employer did not identify any qualified U.S. applicants meeting the minimum job requirements, the employer can proceed with filing the PERM application. Under the normal processing time, it will take around four –six (4-6) months for the Labor certification to get approved. If there is an audit, then it may take another 6 months.

The advantages of seeking the green card through labor certification is that the employer can start the process while the IMG is still fulfilling the 3 years obligation, provided the IMG intends to continue to work in a medically underserved area even after completing the three (3) years requirement. But assuming the IMG does not want to continue working at the medically underserved area after three (3) years, the new employer can start the process after IMG join them.

The disadvantage is the cost and time associated with the PERM labor certification process, and at times, the employers are not willing to move forward unless the IMG has spent some time working for the employer, and there is a possibility of a long term commitment/intention from both the parties to continue with the employment. Another issue is that assuming the employer is a very well-known hospital, or is based in a large city, there could be similarly placed U.S.  Physicians willing and available to take up the job. In our experience, if the job is for a specialist or in a medically underserved area, chances of attracting U.S. worker drops down significantly.

The other option that is available for IMGs to get a green card is through a process called “National Interest Waiver (NIW).”

To obtain the benefits of this provision, the IMG must agree to work full-time in a clinical practice for a period of 5 years.in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA), and must obtain  a statement from a federal agency or a state department of health that has knowledge of the IMG’s qualifications as a physician and that states his/her  work is in the public interest (This statement is known as an attestation).

In order to initiate the process of an NIW petition:

  1. The IMG must contact the state department of health in the state where the practice site is located.   Each state has its own procedures/requirements/criteria for applying for and issuing the attestation letter. For e.g. some states such as Arizona  will only accept NIW application from those IMGs who have completed 3 years’ service on an H-1b pursuant to a  J-1 waiver.
  2. After getting the letter, the IMG or his employer must submit an I-140 Immigrant petition with the following evidence with Form I-140 to the USCIS.   If a foreign physician who plans to serve at more than one practice site, the following evidence must be submitted for each work location.
    • The foreign physician’s full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a Veterans Affairs (VA) facility.
    • Evidence that the foreign physician will provide full-time clinical medical service:
      • In a geographical area or areas designated by the Secretary of HHS as having a shortage of health care professionals and in a medical specialty that is within the scope of the Secretary’s designation for the geographical area or areas; or
      • In a facility under the jurisdiction of the Secretary of VA.
    • A letter (issued and dated within 6 months prior to the date on which the petition is filed) from a State Department of Health or  the Department of Veterans Affairs   attesting  that the foreign physician’s work is or will be in the public interest.
    • If the foreign physician will establish his or her own practice, the physician must submit a sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to actually take to establish the practice.
    • Evidence that the foreign physician has passed a U.S. medical licensing examination and has unrestricted license to practice medicine in that state.
    • If the IMG was a J-1 nonimmigrant who received medical training in the United States, he or she must also provide a copy of the USCIS approval notice of the J-1 visa waiver (I-612).

Further, if the IMG or his spouse is born in a country whose priority date is current, they can also file Adjustment of Status (I-485 application) along with the I-140 NIW petition. By doing so, the spouse can get a work authorization document. However, note that the Legal Permanent Resident Status will only be granted after the IMG completes 5 year of service requirements in the Medically Underserved area or at the VA facility.

NIW option for IMGs is good and viable alternative to the Labor Certification process in case the IMG has no problem or would like to work in a shortage area for at least 5 years.  The employer does not have to worry about cost of Labor certification process, and the IMG has an option to start his own medical practice in a medically underserved area and file his own petition without depending on any employer.  He can also self-petition, even if he is working for another employer provided he gets the necessary employment confirmation letter.

 

Read Part I: Journey from Home Country to H-1 B Work Visa

 

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