If you're a foreign medical graduate training in a US neurology residency or fellowship program, chances are you're here on a J-1 visa sponsored by the Educational Commission for Foreign Medical Graduates. If your training period — either fellowship or residency — is about to come to an end, what are your options for remaining in the U.S. and establishing a practice here?
The ins and outs of that question are explored in a new AAN Career Center webinar featuring experienced immigration attorney Ann Massey Badmus, who has spent nearly 20 years in the field and authored a well-known guide called The Immigration Prescription: The Practical Guide to U.S. Immigration for Foreign Born Physicians. You can download that Webinar at the AAN Career Center online (http://www.aan.com/go/careercenter — just look for the big “Career Webinars” button in the main Job Seekers menu), or you can learn all of the details right here.
Everyone with a J-1 visa knows that the program requires foreign medical graduates to return home for two years immediately after completing residency or fellowship training before they can change their immigration status — unless they obtain one of several types of J-1 visa waivers.
The critical question, if you want to stay in the US, is this: which waiver is right for you, and how can you get it?
There are three main types of J-1 waivers, Badmus explained in her webinar: interested government agency (IGA) waivers; hardship waivers; and persecution waivers. [See “Government Waiver Programs.”]
Most physicians obtaining a waiver to stay in this country get it through the IGA program, Badmus explains, and there are a host of programs to choose from.
J-1 STATUS MUSTS
Once you get that coveted J-1 waiver, your obligations aren't over. You have to work for a minimum of three years as a W-2 employee, not an independent contractor, of your sponsoring employer. You also must report to your sponsoring agency every six months. And you cannot change employers midstream.
“Unless you can prove significant extenuating circumstances, the government will not allow you to change employers before you finish your contract,” said Badmus.
What might those extenuating circumstances be? If the employer didn't pay you, for example, or breached their contract in some other way, such as asking you to conduct yourself in an unprofessional manner or if you were terminated by the employer for reasons beyond your control (in other words, not something you did). “We've gotten approvals for physicians under a waiver program to change employers because of something the employer has done that is not kosher,” said Badmus. “Extreme family hardship might also be approved — again, not just separation anxiety, but for example, we've had cases where there might be an issue with a child not being able to live in a certain area due to illness and needing to change climate.”
Badmus' conservative timeline is that the applicant should allow between four and six months to get a J-1 visa waiver.
Having a J-1 visa waiver alone is not enough, Badmus cautions. You cannot begin work until you also have your H1B visa status approved. It can't get approved until you have the waiver, but Badmus said she typically advises clients to start the H1B application process as soon as they receive their State Department approval, because it can take one to four months for the H1B visa to be authorized. [For More on H1B, see “HIB Basics.”]
Both the J-1 visa waiver and the H1B are temporary things. Ultimately, you'll have to return to your home country unless you receive a permanent -residency -certification — the coveted “green card.” As a physician, you'll probably be applying for an “employment based” (EB) green card. There are five EB statuses, but EB-1 and EB-2 are the ones that apply to doctors.
Each year, a total of 140,000 EB applicants are granted green cards. Each country gets no more than 7 percent of that total (or 9,800) no matter how large or small, populous or unpopulated it is — which, of course, means that citizens of countries like India and China are at a substantial disadvantage in the system.
EB-1 status involves a “national interest” waiver for persons of extraordinary ability in the sciences, arts, education, business, or athletics. As many as 28.6 percent of each country's total annual green card allotment can come from this category. “You have to have extraordinary ability — to be able to show that you are one of the few physicians who have risen to the top in your field. Many physicians want to be in this category, so it requires quite a bit of evidence,” said Badmus.
EB-2 status can be attained by professionals with advanced degrees or persons of exceptional ability. While you don't have to be one of the very small percentage who has risen to the absolute top of your field, as with the EB-1 green card, you do still need to have a degree and expertise that is significantly above the average for the field.
Here too, as you might expect, there's an opportunity for a waiver — the “physician-only National Interest Waiver,” or NIW. If you agree to work for five years in a health professional shortage area or medically underserved area, you can get your green card through the NIW -program, Badmus said.
There's one other green card category to keep in mind: the family category. “If you have an immediate relative — that means a spouse or child 21 years or older — who is a U.S. citizen, they can sponsor you for a green card and it does not require waiting time,” Badmus said. “But if you are a J-1 physician who's obtained their waiver through IGA sponsorship, you must complete your three years before getting your green card.” There's no annual limit on immediate relative applications for green cards.
You can also be sponsored by a US citizen parent, brother, or sister, or by your spouse if he or she is a permanent resident rather than a US citizen, but that's known as a “preference” relative. There are annual limits on the approvals for these categories, and they can take a lot longer — between five and 12 years, depending on the relationship, said Badmus.
“In all cases, it's very important that you speak with an immigration attorney who has experience working with physicians,” said Badmus. “Immigration is different for physicians than for others, and not all attorneys are familiar with their specific programs and requirements. And even if your employer requires you to use their attorney, you should consider getting your own. An attorney retained by your employer has a first obligation to them, and you want someone who's first and foremost on your side.”
After you complete your J-1 waiver obligations, you can work in the United States under your H1B visa. This visa allows U.S. employers to temporarily employ foreign workers in specialty occupations. -”Temporarily” means three years, extendable to six.
The requirements for that visa are: a U.S. bachelor's degree or higher; a state license in the state where you are going to practice; and employer sponsor. In past years, the government has allowed self-employment under limited circumstances, but Badmus said it's not something you want to cloud your application with. “Best to stick to an employer sponsor.”
There's a strict cap on the number of new H1B visas granted every year: 65,000, plus an additional 20,000 for individuals who hold master's degrees or higher. “If you've never held an H1B visa before, you're subject to the cap,” said Badmus. The year runs from October 1 through September 30, just as with J-1 visas, and employers may begin filing petitions for the following fiscal year on April 1. (So, for example, if you're seeking new H1B status for fiscal year 2013, your employer can submit your petition starting next April 1— and should do so as soon as possible.)
The USCIS makes a rolling tally of petitions available on its Web site. (Google “FY 2012 H-1B Cap Count.”) For example, as of November 14, 2011, all of the 20,000 advanced degree slots for 2012 had been filled by cap eligible petitions, and 56,300 of the 65,000 regular cap slots had been filled.
There are a few requirements that your employer has to fulfill in order for you to get H1B status:
- Pay you the minimum of the prevailing wage or actual wage, whichever is higher, for your entire term of employment (find out what that is here: http://www.flcdatacenter.com/).
- Pay an American Competitiveness and Workforce Improvement Act (ACWIA) fee of either $750 (1-25 employees) or $1500 (25 or more).
- Put you on the payroll within 30-60 days of your H1B approval date, -regardless of extenuating circumstances.
GOVERNMENT WAIVER PROGRAMS
“The most commonly used program for doctors is known as the Conrad State 30 Program,” immigration attorney Ann Massey Badmus said. Although it's a federal program, each state individually administers the Conrad 30 through its health department, so if, for example, you want to apply for the Conrad 30 plan in Texas, you apply to the Texas Department of Health.
The Conrad State 30 program — the number 30 refers to how many doctors each state can give waivers to under the program in a given year — requires physicians to work in a federally certified health professional shortage area (HPSA) or medically underserved area (MUA). (Searchable resource at datawarehouse.hrsa.gov/geoadvisor/shortagedesignationadvisor.aspx.) Graduating residents or fellows must sign a contract of at least three years. In some states, the requirement is longer. In Washington State, for example, specialists such as neurologists must have a five-year contract. You cannot sign on with an employer who requires a non-compete clause.
“The purpose of this program is to get physicians working in underserved areas nationwide,” said Badmus. “All states will accept primary care physicians for this program, but not all will accept specialty physicians, although most states will accept a waiver for a specialty such as neurology.”
Although the program requires that you work in a HPSA or MUA, there's also something called “Flex 10” slots. “If your employer — a hospital or physician practice — is not actually physically located in a HPSA or MUA, but can show that they have a history of serving a significant number of patients who come from surrounding areas that are designated as a HPSA or MUA, you may still be eligible,” says Badmus.
Each state can grant up to 10 of these flex waivers (out of their overall limit of 30) every year; within that limit, states often make other rules. “Wisconsin, for example, states that the facility has to show that 25 percent of its patients are coming from underserved areas,” Badmus said. “If your employer can't show that, your waiver probably won't be approved.”
There are also two other waiver programs, one sponsored by the Department of Health and Human Services and the other by the Appalachian Regional Commission (ARC). Neither, said Badmus, is a particularly attractive option for most neurologists because they are limited to primary care physicians. ARC, however, is authorized by federal mandate to accept specialists if they choose to. “They just haven't done so thus far,” she said.
If you're not able to secure a waiver through one of the Interested Government Agency programs, your other option is a hardship waiver — either based on persecution or family hardship.
“Both are hard to prove,” says Badmus. For the family hardship waiver, you must have either a US citizen spouse, children, or both; be able to prove that your spouse or children would undergo exceptional hardship if you, the physician, returned to your home country without them for two years and (not or) they returned to your home country with you. This isn't just about ordinary separation anxiety, Badmus says. “For example, if you have a child whose medical condition cannot be treated well in your home country, and you cannot earn enough money to pay for your child's medical care here while working in your home country, that might qualify.”
The persecution waiver is even harder to get. “You must show that you are likely to face some kind of persecution by either the government of your home country, or by a political or religious or other group that your home government will not or cannot control,” said Badmus. “Again, you need very strong evidence.”