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Clinical physicians face unique circumstances with respect to U.S. immigration options. Many foreign physicians begin their U.S. immigration journey by participating in a medical residency or fellowship.
Caroline Ostrom, Minneapolis business immigration attorney, advises and assists physicians / doctors and their employers throughout the U.S. on the immigration options best suited to their circumstances. We encourage you to contact us if you need legal advice regarding immigration eligibility or application processes.
Often the medical resident or fellow is required to use a J-1 visa which, in all cases involving graduate medical education, carries a 2-year home residence requirement. In other cases, the resident or fellow may instead use an H-1B visa, which has no home residence requirement. Generally the policy of the medical institution providing the training dictates whether the resident or fellow must use the J-1, or may elect an H-1B. H-1Bs are generally more expensive to arrange than J-1s, and the employer is required to pay all associated costs. In addition, the H-1B has certain salary requirements, which the J-1 does not. For these reasons, many residency and fellowship programs prefer to use the J-1.
For those residents and fellows permitted to use an H-1B, the path from that visa to lawful permanent residence status is essentially the same as for other professional workers, except there is an additional Physician National Interest Waiver option, unique to physicians, and described below. See the other options under Permanent Residence (Green Card) Through Employment. A complicating factor in some cases, however, is the general 6-year limit on H-1B time. Some residencies, or a residency followed by a fellowship, may be of sufficient length that the basic limit of H-1B time is exhausted, or nearly so, by the time the training period ends. This is an issue the resident or fellow must be aware of, so appropriate options may be identified well in advance of exhausting all H-1B time, including beginning the green card process prior to the sixth year of H-1B status. Another option that suits some physicians in these circumstances is the O-1.
Those physicians on J-1 “alien physician” visas must deal with the 2-year home residence requirement, should they decide to remain and pursue careers in the United States. The 2-year home residence requirement precludes acquiring H-1B, L-1 or permanent residence status unless the individual first returns to his/her home country for two years, or obtains a J-1 Waiver of the requirement.
There are several waiver options for the 2-year home residence requirement for physicians. Those options are different for physicians than for other kinds of J-1 exchange visitors however. The “No-Objection” waiver common for other kinds of J-1 programs (students, researchers, etc.) is not available to physicians. Instead, J-1 physicians must seek waivers through Interested Government Agencies, State Departments of Health, by proving exceptional hardship to a U.S. citizen or U.S. permanent resident spouse or child, or by demonstrating the physician would face persecution if forced to return to his/her home country. By far, the most common approach to seeking J-1 physician waivers is through one of several Interested Government Agency programs and the Conrad 30 program administered through the various state departments of health.
The Interested Government Agency waivers are run through the Delta Regional Authority, the Appalachian Regional Commission, the Veterans Administration, and the Department of Health & Human Services. Each of these waivers requires at least 3 years of clinical service for a facility or population designated as medically underserved. Each agency has its own requirements in terms of those designations, and its own process for application.
The Conrad 30 program also requires at least 3 years of service for a facility or population designated as medically underserved. Each state may recommend up to 30 waivers each year. Processes and timelines vary from state to state, as do policies on such matters as recommendations for primary care physicians versus specialty physicians.
This waiver is not for the J-1 2-year home residence requirement. Rather, the PNIW waives the requirement for a job offer, and the requirement for a permanent labor certification (PERM). The PNIW would allow a physician to self-sponsor for permanent residence if he/she wanted to open and run a medical practice rather than work for an employer. A physician seeking a PNIW must serve in a clinical capacity for 5 years either in a medically underserved area or at a Veterans Administration (VA) facility. Depending on individual circumstances, the PNIW may be advantageous, or there may be more advantages under the usual PERM process. In some cases, a physician may decide to proceed under both options.
Based in Minneapolis, our immigration team works with physicians and their employers nationwide to assess the immigration considerations and options for physicians, and select the best approach for the situation presented. We encourage you to contact us if you need legal advice regarding your physician immigration matter.