Advice to Doctors from India or China Working in H Status in Medically Underserved Areas

Priority dates for green cards for people from China and India have suddenly become current as of August 1, 1999.  This presents particularly difficult issues in advising doctors from those countries. Our current advice to doctors from India or China working in H nonimmigrant visa statusin underserved areas is as follows:

The INA (statute) requires you to hold H status for 3 years.  There are no regulations instructing INS officers how to implement this part of the law.  Thus, there is no clear guidance as to whether you may submit an adjustment application prior to completion of the three year term in H status.  To do so is at your own risk, knowing that the adjustment may ultimately be denied, causing you to have to reapply for adjustment, at a second expense, should the first one be denied.  Given this risk, there may still be good reason for you to apply for adjustment of status prior to completion of the three year term. First, if you don't apply immediately, you may have to wait longer than the expected three years in H status because the India and China EB-2 priority dates are expected to retrogress dramatically once INS starts approving adjustments again.  Second,  if no implementing regulations come out, INS may well approve your adjustment.  Third, under new policy, you may travel on your H (without the need for advance parole or work authorization) while the adjustment is pending, so you can fulfill your three year obligation in H status.  You may not leave the shortage area until your H status expires, and, if your employer is the petitioner/sponsor on your EB-2 NIW, then you must stay with that employer until you are admitted as a permanent resident.

Please note that this advice is our best analysis at this time.  Our advice may change based on new developments.

If you would like us to advise you further in this regard, please contact Hilary Fraser (htf@millermayer.com) or Rosie Mayer (rma@millermayer.com).