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The alphabet soup of hiring foreign physicians

June 1, 2006
by ALEXANDER R. CASTRODALE, ESQ
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Understanding immigration law can help you address staffing shortages

In response to the worsening shortage of qualified physicians in the United States (especially mental healthcare providers such as psychiatrists), hospitals and healthcare provider organizations increasingly have relied on foreign physicians to meet the demands of their patient populations. In addition to the usual licensure, compensation, and relocation issues, employers must analyze a foreign physician's immigration status before offering employment. Such status determines the length and scope of the physician's authorization to work in the United States and often will dictate whether it is in the employer's and patients’ best interest to proceed with the hiring.

Unless a physician is a U.S. citizen or permanent resident (green card holder), he must possess a temporary/nonimmigrant visa status to work legally in the United States. Although U.S. immigration law is an alphabet soup of visa categories, H-1B status is the most common (and suitable) option for most foreign physicians.

To qualify for H-1B status, (1) the position to be filled must be a “specialty occupation,” i.e., one that requires at least a four-year college/university degree, and (2) the foreign national must possess a four-year degree (or the equivalent) in a related field. An individual may remain in the United States in H-1B status for up to six years, by which time he must either obtain a green card (or at least be at a certain stage in that process) or an alternate temporary/nonimmigrant visa status.

The H-1B Cap

Although foreign physicians rarely have difficulty satisfying the H-1B criteria, Congress permits the U.S. Citizenship and Immigration Services (CIS) to issue only 65,000 new H-1B visas per fiscal year (October 1 to September 30). As a result, and because this visa category is also the most popular for nonphysicians, the demand for H-1Bs far exceeds the supply each fiscal year. Furthermore, because Congress permits employers to file applications beginning on April 1, i.e., six months before the start of the fiscal year, all 65,000 visas can be (and usually are) allocated long before October 1. For example, in 2005, all H-1B visas were allocated by mid-August—nearly two months before the fiscal year began.

To alleviate some of the burden the H-1B “cap” imposes on employers, Congress exempted certain employers from the annual limitation. “Cap exempt” petitioners include: (1) institutions of higher education or a related or affiliated nonprofit entity, (2) nonprofit research organizations, and (3) governmental research organizations. As such, the exemption rules greatly aid residents, fellows, and university-based attending physicians, most of whom are employed by an institution of higher education or a related/affiliated nonprofit entity.

Graduating residents, fellows, and/or foreign attending physicians seeking employment with private, for-profit practice groups often find the H-1B cap to be an enormous, sometimes insurmountable, obstacle. Although some creative solutions to evading the H-1B cap exist (the exemption rules are quite flexible, and for-profit employers often can designate a related nonprofit entity as the employer until a new H-1B visa is available at the start of the next fiscal year), it is not uncommon for a foreign physician to find himself, through no fault of his own, unemployable and unable to remain in the country until the start of the next fiscal year. It is, therefore, absolutely critical that employers understand their H-1B cap status and analyze a candidate's H-1B “employability” as early as possible.

Prior Medical Training in J-1 Status

Another obstacle to obtaining H-1B status is the two-year home country residence requirement applicable to any individual who has received medical training in the United States as an Exchange Visitor in J-1 status. Such physicians, before being eligible for H-1B or permanent residence status, must reside and be physically present in the country of their nationality or last foreign residence for at least two years following completion of their J-1 visa program.

Although most foreign physicians try their best to avoid J-1 status, the H-1B cap and additional scrutiny now given to all U.S. visa categories often render the J-1 visa as the only option. Also, many foreign physicians are either unaware of the requirement or receive bad advice concerning their options for obtaining a waiver.

It is possible to obtain a waiver of the foreign residence requirement, thereby rendering the foreign physician immediately eligible for H-1B status or a green card. Individuals subject to (but who do not wish to comply with) the requirement may seek a waiver in one of the following ways:

  • Prove a well-founded fear of persecution upon return to the home country because of race, religion, national origin membership in a particular social group, or political opinion.

  • Demonstrate that his departure from the United States would cause extreme hardship to his U.S. citizen or lawful permanent resident spouse or child (mere separation from family does not establish extreme hardship).

  • Obtain waiver support/sponsorship from a U.S. federal government agency in return for work on a project for (or of interest to) that agency (the agency must determine that the beneficiary's continued stay in the United States is vital to one of its programs/projects).

  • Obtain waiver support/sponsorship from a designated state department of health (DOH) or its equivalent.

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