RESIDENCY OR FELLOWSHIP TRAINING:

Foreign medical graduates seeking to practice clinical medicine in the United States usually must complete (or in some cases repeat) residency training at a U.S. program to obtain a state medical license. Doctors who have completed an accredited residency training program in Canada are often exempt from this requirement and may obtain a state license without repeating residency training in the U.S. To obtain a U.S. residency program placement, a foreign medical graduate must successfully complete an English test and a basic science test and receive certification through ECFMG (the Educational Commission for Foreign Medical Graduates) of their foreign education. ECFMG can act as a visa sponsor enabling the foreign medical graduate to obtain a J-1 visa and enroll in the residency program. Alternatively, the residency program itself may sponsor the foreign medical graduate for an H-1B visa. A J-1 or H-1 or other type of work-eligible visa is necessary to maintain status in a residency program because residents receive compensation and are considered "employees" and therefore must have work authorized visa status.

TWO-YEAR HOME RESIDENCY REQUIREMENT:

Any J-1 visa holder sponsored by ECFMG is subject to a requirement that he or she return to his or her home country at the completion of the training program for two years. Satisfaction or waiver of this requirement is necessary before moving from J visa status to H or L visa status. However, J-1 visa holder may obtain other types of visas via a consular application abroad, such as exceptional ability temporary worker (O-1) visas. The O-1 visa option is discussed below. Therefore, in most cases, a return to the home country for two years or a waiver of this requirement is necessary before a foreign doctor can work in the United States.

J-1 WAIVERS:

J-1 waivers are sometimes available to foreign medical graduates who have employment that is important to an "interested government agency," who have suffered persecution in their home country, or who can demonstrate that a return to their home country will cause undue physical or medical hardship to their U.S. citizen or permanent resident spouse or child. Two year home residence waivers based on a no objection letter from the doctor's home country are not permitted for foreign medical graduates.

INTERESTED GOVERNMENT AGENCY WAIVER PROGRAMS:

By far the most common way to obtain a J-1 waiver for a foreign medical graduate is through the recommendation of an interested federal government agency or state department of health. For clinical care physicians working in federally designated areas having shortages of primary care physicians, these waiver recommendations are available through a number of federal agencies, including the Appalachian Regional Commission, the Delta Regional Authority, the Department of Health and Human Services and the Veterans' Administration. The departments of health in most states can also sponsor J-1 waivers.  Most state programs also process waiver recommendations for subspecialist doctors, such as cardiologists and oncologists. Waiver recommendations for research work are available through the Centers for Disease Control and the National Institutes of Health, among others, and can be processed only for leading researchers.

J-1 WAIVER PROCESS:

Upon receiving an employment offer, a foreign physician may begin the J-1 waiver process, which normally takes several months and, if successful, results in a letter to the doctor waiving the foreign residence requirement and allowing the doctor and doctor's dependents to move to another visa type.  If the doctor was granted a waiver based on a 3-year service obligation, the next visa type must be an H-1B. Moreover, the doctor is required to begin work in H-1B status within 90 days of waiver grant.

MEDICAL LICENSE:

Most states issue medical licenses to foreign medical graduates who show substantial completion of the requisite number of years of residency training, satisfactory results on a U.S. medical credentialing exam (normally the same exam given for ECFMG certification purposes), and certification of foreign medical education, among other items. New York State also requires medical license applicants to be U.S. citizens or aliens lawfully admitted for permanent residence in the United States. However, the state can grant a three-year waiver to a foreign doctor for an alien physician to practice in a medically underserved area.

WORK-ELIGIBLE VISA OPTIONS FOR J-1 WAIVERED PHYSICIANS:

Once a J-1 waiver and state medical license are obtained, a foreign physician may obtain a new work authorized status for U.S. employment. This is normally an H-1B (professional temporary worker) visa or an immigrant visa ("green card"). In many cases, the H-1B or green card process may be concurrent with the J-1 waiver process. The H-1B visa and some types of green card petitions require filings with the U.S. Department of Labor as well as with U.S. Citizenship and Immigration Services. In most cases, foreign medical graduates may not change from J-1 to H-1 status in the United States but must travel abroad to a U.S. consulate to obtain visa issuance. Federal law requires most foreign physicians who have received a J-1 waiver to stay in H1-B status for three years before filing for a green card.

WORK-ELIGIBLE VISA OPTIONS FOR J-1 PHYSICIANS WHO HAVE NOT RECEIVED A WAIVER:

If a physician held J-1 visa status but has not yet received a waiver, the physician may work in O-1 status, if she or he is approved as an extraordinary ability alien in the sciences. This petition requires showing that the physician has satisfied the O-1 requirements, including evidence of significant research experience, publications, and awards, among others. A major component of a successful O-1 petition is strong referee letters, attesting to the significance of the physician’s original contributions to the relevant field.

WORK-ELIGIBLE VISA OPTIONS FOR PHYSICIANS WHO HAVE NEVER HELD J-1 STATUS:

Some foreign physicians have completed their U.S. residencies in H-1B status, rather than J-1. These physicians do not need a waiver. They can continue to work for U.S. employers in H-1B status. However, these physicians have begun using up their allotted maximum of 6 years in H-1B stay. Unless they have the green card process begun for them before the end of the 5^th year in H-1B stay, the only option for continued work authorization for these physicians may be the filing of a National Interest Waiver (NIW) and concurrent adjustment and work authorization application, filed no less than 3 months prior to the end of their 6 year stay.

GREEN CARD OPTIONS FOR FOREIGN PHYSICIANS:

Filing of either a labor certification or an immigrant visa petition before the end of year 5 in H-1B status will preserve a physician’s eligibility for H-1B extensions after the 6 year maximum.

Labor certification (PERM):  Generally, employment-based green card applications start with the labor certification application, or the PERM application. The PERM application requires employers to conduct specified recruitment for the physician’s position. If no qualified and available US worker responds to the recruitment, the PERM application is filed with US Department of Labor, usually electronically. The approved PERM application makes a physician eligible to take the next step toward permanent residence – the filing of an immigrant visa petition (form I-140).

Immigrant visa petition (I-140): After approval of the PERM application, the physician’s sponsoring employer may file the immigrant visa petition on the form I-140. This may be done before the physician completes the 3-year obligation, in the case of J-1 waivered doctors. 

National Interest Waiver (NIW): Physicians may also apply for an NIW, an immigrant visa petition filed on the form I-140. The NIW requires the physician to work full-time in a designated shortage area for 5 years.  Physicians whose green card category is not retrogressed can also file an adjustment application (I-485) concurrently with the NIW application. Filing the I-485 allows the physician to obtain independent work authorization roughly 3 months after filing. So the filing of an NIW is also a way to obtain work-authorization for the doctor and dependents.

For further information on foreign physicians and other immigration matters, please contact Miller Mayer, LLP, 202 East State Street, 7th Floor, Ithaca, New York 14850, telephone: 607-273-4200, fax: 607-272-6694. Our immigration attorneys are Hilary Fraser (htf@millermayer.com), Carolyn Lee (csl@millermayer.com), Rosanne Mayer (rm@millermayer.com), and Stephen Yale-Loehr (swy1@cornell.edu).