GREEN CARDS:
Foreign physicians may be eligible for Permanent Residence under the First or Second Employed-Based Preference Categories created by Congress:

·         Under the First Employed-Based Category, foreign physicians can qualify for Permanent Residence (without the need for a Labor Certification or Job Offer) if they can demonstrate a level of “extraordinary ability” in the Medical Profession. 

·         Under the second Employment-Based Preference category, foreign physicians can qualify if they can demonstrate “exceptional ability” or by virtue of an advanced degree.  However, a labor certification and job offer are required in the second preference category unless the physician can qualify for a National Interest Waiver (NIW).  Legislation passed in 1999 has made it much feasible for certain foreign physicians seeking permanentresidence in the second employment-based preference to qualify for national interest waivers. Under the new legislation, the Attorney General must grant a national interest waiver if: (1) the physician agrees to work full time in a designated health professional shortage area (HPSA) or in a Veterans Administration (VA) hospital, and (2) a federal agency or a state department of public health has determined that the physician's work is in the public interest.

H-1B VISAS FOR Physicians and Medical Graduates:
Foreign Medical Graduates (FMGs) may qualify for the H-1B visa if: 

·  they are undertaking teaching or research, with the same restrictions regarding type of employer and limitations on patient care as noted above; or

·  they are performing direct patient care (either as interns or residents as part of graduate medical education, or in a private medical practice or private or public health care institution), provided several conditions are met.

FMGs engaged in "specialty occupations" not characterized by patient care or teaching or research may also qualify for the H-1B visa, without the restrictions imposed for the two uses described above. This use of the category might arise for FMGs in private industry, such as a medical director at a pharmaceutical company or a researcher with a private for-profit employer.

These requirements must be met for H-1B doctors performing direct patient care:

(1) the alien doctor must have passed the Federation Licensing Examination (FLEX) (parts I and II). Equivalent examinations designated by the Secretary of Health and Human Services include the National Board of Medical Examiners certifying examinations (parts I, II, and III) and the United States Medical Licensing Examination (steps 1, 2, and 3);

(2) he or she is competent in oral or written English, as demonstrated by passage of the English language proficiency test given by the ECFMG (Educational Commission for Foreign Medical Graduates), which currently sponsors foreign doctors for graduate medical education in the J-1 category;

(3) he or she has a full and unrestricted license to practice medicine in a foreign state or he or she has graduated from a medical school in a foreign state; and

(4) he or she has a license or other authorization required by the state of intended employment to practice medicine (if the state requires such a license or authorization).

Important Note: Graduates of U.S. schools and physicians of renown. Items 1, 2, and 3 need not be met by alien doctors who have graduated from U.S. medical schools. Those doctors need only show that they are graduates of U.S. medical schools and that they have a state license. Similarly, Item 1 and 2 are inapplicable to alien physicians who are of national or international renown in the field of medicine and who have graduated from a medical school in a foreign state.

All other conditions of the H-1B category are relevant to FMGs, foreign doctors who are graduates from U.S. medical schools, and foreign physicians of national or international renown pursuing H-1B visa.

J-1 Visa and the J-1 Visa Waiver: 

The majority of foreign medical school graduates who enter the USA for graduate medical training or education come on a J-1 visa.  Two groups of physicians may be eligible for J-1 visa status:

·         The first group encompasses those who seek "graduate medical education or training"; this includes internships, residences, and clinical fellowships. 

·         The second group encompasses physicians coming to perform other activities, such as teaching or research.

The J-1 Visa category is subject to much regulation and the two-year home residency requirement.  Without a waiver of the home residency requirement, the physician is prohibited from adjusting to another non-immigrant category (such as the H-1B) or from obtaining permanent residence.  The J-1 visa waivers available to foreign physicians are: a waiver based on a request from Interested Government Agency (IGA), a waiver based extreme hardship to a Permanent Resident spouse or child, and a waiver based on a claim that the foreign physician would face persecution on the grounds of race, religion, or political opinion in their home country.  Foreign physicians are not eligible for the “no objection” waiver.

In most cases, the IGA waiver will be the best option for J-1 physicians since they are ineligible for the "no objection" waiver. Assuming sponsorship can be obtained from an IGA, the probability of getting a waiver is typically much better than attaining a waiver on hardship or persecution grounds. Although any federal government agency can be a waiver sponsor, certain agencies have formulated special guidelines and procedures for sponsorship requests by J-1 physicians. Among these agencies are the Department of Health and Human Services (HHS), the Department of Veterans Affairs (VA), and the Appalachian Regional Commission (ARC). In addition, state health departments have the authority to recommend waivers for up to 30 J-1 physicians per year under a provision originally included in legislation passed in 1994 and known as the Conrad Program.