I. Employment immigration options for FMGs – job offer needed
- » In this section, non-immigrant visa and permanent residency options for FMGs will be discussed. This includes:
- (1) H-1B visas for physicians;
- (2) J-1 Exchange Visitor visas for physicians to acquire U.S. medical residencies;
- (3) L-1 visas for physicians that work in large transnational health care facilities;
- (4) E-2 visa for physicians investing in a medical practice;
- (5) O-visa for physicians of extraordinary ability;
- (6) H1B1 visas for Singaporean and Chilean nurses;
- (7) TN classifications for physicians that attained their medical training in Canada; and
- (8) Permanent residency options.
1. H-1B visas and physicians
A. Introduction
Generally, a foreign physician may obtain H-1B visa status for the following purposes: (1) to teach or conduct research at a public or nonprofit private educational research facility, or (2) to work for a U.S. employer as a physician (including residency programs ). Below, we will discuss the basic H-1B prerequisites for physicians, the H-1B application process for physicians,
It is critical that physicians entering to teach or conduct research do not engage in direct patient care (unless it is incidental to the teaching or research) – otherwise it is a violation of status. If the physician wishes to engage in direct patient care, he or she should attain an H-1B to work for a U.S. employer.
Physicians seeking H-1B must have a full and unrestricted license to practice medicine in a foreign state or have graduated from a medical school, whether in the United States or abroad. If the physician is to perform direct patient care, he or she needs a license or other authorization required from the state of intended employment. If the purpose is research, no license is needed.
Finally, the H-1B classification also plays a role in the process by which J-1 physicians may obtain a waiver of the two-year home-residence requirement. The waiver hinges on approval of the physician’s agreement to take H-1B employment for three years at a health facility or health-care organization found to be in the public interest. For example, physicians who seek H-1B status to work in a designated medically under-served area for three years may be eligible for a waiver of the two-year residency requirement. This is further explored in the section regarding J-visas.
B. Required certification examinations
Additionally, physicians must meet licensing and English proficiency requirements. Before a physician may enter the U.S. on an H-1B visa, he or she must:
- » Pass the Federation Licensing Examination (“FLEX”), or its equivalent ;
- » Be licensed to practice medicine in the state of intended employment;
- » Either have a full and unrestricted license to practice medicine in his or her home country, or graduated from a medical school in the U.S. or foreign country; and
- » Be competent in oral and written English.
If a physician is granted H-1B status, it typically is initially valid for three years (and may be extended up to six years). Additionally, the physician’s spouse and minor children are eligible for H-4 status to accompany the physician to the U.S.
C. Physicians exempt from certifying examination requirements
There are three scenarios where a physician may be exempt from the aforementioned certification examinations: (1) Physicians of national or international renown (because they are not within the definition of “foreign medical graduates”), (2) Physicians not coming to perform services as members of the medical profession, and (3) physicians who graduated from a U.S. medical school.
2. J-1 exchange visitor visas for physicians
Many physicians enter the U.S. on a J-1 visa to complete U.S. medical residencies. Often, this is a necessary step in the H-1B process, because most states will not issue a medical license for a physician unless the physician has completed a medical residency in the state of intended employment.
A. Requirements and application
A physician desiring J-1 classification must be certified and sponsored by the Educational Commission for Foreign Medical Graduates (“ECFMG”). Also, the J-1 candidate must meet the same English proficiency requirements as outlined in the H-1B classification. Other supporting evidence the physician must present includes an offer letter from a certified training program, and a Statement of Need from the Health Department located in the candidate’s home country. The candidate should then submit a Form DS-2019 along with supporting documentation to the U.S. Consulate located in his or her home country.
Physicians in J-1 status who enter the U.S. to receive graduate medical education or training are subject to a two-year foreign residency requirement. After the two-year residency requirement is fulfilled (or if the individual obtains a waiver), the physician may be eligible for either “H” worker status or legal permanent residency. Note that physicians who enter America on exchange visitor programs for the purpose of observing, consulting, teaching, or research (where there is no direct patient care involved) are not automatically subject to the two-year foreign residency requirement. However, the residency requirement may apply if the U.S. or a foreign country sponsored the physician’s visit. Finally, J-1 physicians may extend their stay up to six months past their training period in order to take their specialty Board examinations.
B. Waiver of two-year residency requirement
It is possible for physicians in J-1 status to waive the two-year residency requirement. If any of the below circumstances applies to the physician, he or she may waive the two-year residency requirement:
- » The physician’s spouse and children are legally permanent residents or U.S. citizens and would suffer exceptional hardship unless the two-year requirement was waived;
- » The physician would be subject to persecution on account of race, religion, or political opinion if returned to the home country;
- » A qualifying U.S. government agency requests a waiver on the behalf of the physician because the physician is actively and substantially involved in an activity or program sponsored by or of interest to that agency; or
- » A State Department of Public Health – or its equivalent – requests a waiver on the physician’s behalf.
If the physician obtains a waiver through a qualifying U.S. government agency or a State Department of Public Health, the physician is required to work three years (in H-1B status) at a Department of Health and Human Services designated area that (1) suffers from a shortage of medical professionals, or (2) is a Veteran Affairs facility. Once the waiver is granted for these two reasons, the physician must begin work within 90 days; otherwise he or she is again subjected to the two-year residency requirement.
3. L-1 intra-company transfers
Just like their nurse counterparts, physicians that belong to large transnational hospitals may qualify for an L-1 transfer (provided they meet the statutory requirements).
4. E-2 visas for physicians investing in a medical business
Physicians may be eligible for an E-2 treaty investor visa if they can establish that they are coming to America to invest in a medical business or facility. The usual E-2 requirements must be met. Again, note that the E-2 status does not allow physicians to engage in direct patient care.
5. O-1 visas for physicians of extraordinary ability
If the physician is one of extraordinary ability (e.g. one that is internationally renowned, or at the very top of the medical field), then he or she may qualify for an O-1 visa. Note that this is temporary, and the physician may also use his or her “extraordinary ability” in the medical field to attain permanent residency through the EB-1A classification discussed below.
6. H-1B1 – Singapore and Chile
Nationals of Singapore and Chile are eligible for the H1B1 classification. This is very similar to the H-1B classification, so physicians from those countries could qualify for this status, and circumvent the usual H-1B cap. There are 5400 H1B1 visas set aside specifically for Singapore nationals. Just an interesting thing to remember, if/when your law office in Singapore prospers. 
7. Trade NAFTA work permits (TN) – Canadian and Mexican physicians only
Foreign physicians may enter under the TN category only to teach or do research (with incidental physician care). They may not enter to practice medicine under TN even if they graduated from a U.S. medical school.
Note that physicians who graduate from a Canadian medical school have some advantages over other FMGs. Since the U.S. Department of Education’s Licensing Commission on Medical Education (“LCME”) has accredited all U.S. and Canadian medical schools, physicians with Canadian educational backgrounds are exempt from having to take an English proficiency test. Finally, over 40 U.S. states do not require a physician to acquire a U.S. medical license if he or she already possesses a Canadian medical license.
8. Legal Permanent Residency
There are three ways physicians can attain permanent residency: (1) the physician is granted a labor certification, (2) the physician possesses extraordinary ability and is eligible for an EB-1 visa, or (3) the physician qualifies for a National Interest Waiver (“NIW”).
Each option is viable for different reasons, as will be discussed below.
A. Labor Certifications
Provided that they meet the standard labor certifications requirements, physicians can attain legal permanent residency through a sponsoring employer. This is the permanent residency option available to a standard physician.
B. Employment-Based (EB) Preferences
If a particular physician has risen to international prominence and fame, then he or she may be eligible for EB-1A classification as an “alien of extraordinary ability”, rather than having to go through the long labor certification process.
C. National Interest Waivers
Finally, NIWs are available to doctors who can establish that their U.S. employment would be in the “public interest” of the U.S. (therefore allowing the physician to bypass the labor certification process). Generally, a physician may qualify for a NIW by either:
- » Working five years in a medically under-served area (including Primary Medical Health Professional Shortage Areas, and Mental Health Professional Shortage Areas), or
- » Working at a Department of Veterans Affairs facility.
Note that the NIW, unlike the labor certification or EB-1A classification, does not require a job offer. Finally, the physician can self-file for a NIW, and also have an employer concurrently file a NIW on behalf of the physician.
II. Education and Training Immigration Options for Nurses – Job Offer Not Needed
- In this section we discuss immigration options for physicians and medical students, including:
- (1) H-3 visas;
- (2) F-visas; and
- (3) B-visas.
1. H-3 Physicians Vacation Externship Programs
Normally, medical professionals do not qualify under the H-3 classification. However, medical students may qualify for H-3 classification if the student will engage in employment as an extern during his or her medical school vacation. This is a very narrow exemption.
Note that the H-3 classification cannot be used for “graduate medical education or training.” Therefore, this precludes a foreign doctor from doing an internship, residency, or any post-medical school training in H-3 status. The foreign doctor may however, qualify under J-1 status.
Since an H-3 candidate must prove to the USCIS that he or she is coming to the United States primarily to receive training that benefits the candidate, he or she must establish intent to return, including maintenance of a residence in the in candidate’s home country.
If the medical professional qualifies for an H-3, note that the individual’s training program must fulfill the H-3 classification’s four requirements, and not trigger any of the eight restrictions.
2. F-Visa – Foreign nationals entering the U.S. to attend medical school
An individual can enter the U.S. on an F-visa to attend medical school at a qualifying U.S. educational institution.
3. B-1 visa – Business or pleasure related purposes
Medical professionals may enter the U.S. under B status if they satisfy three statutory elements: (1) a foreign residence the alien intends to maintain; (2) a temporary visit; and (3) a mission on business or pleasure. The B-visa excludes individuals arriving to the U.S. to study, work, or represent the foreign press or media. Therefore, here are some examples of FMGs who may enter the U.S. on a B-1 visa:
- » Teaching Fellowship – Physicians entering the U.S. because of a bona-fide scholarship, such as a “teaching fellowship”, may be granted “visitor” status if the school the physician is teaching at is not approved for student status.
- » Medical Clerkship – An individual studying at a foreign medical school and can enter the U.S. if he or she is granted an “elective clerkship.” That is, the individual receives no remuneration from the hospital, and instead works under the supervision of hospital staff to attain practical experience that is approved by the individual’s foreign medical school education.
- » Observe U.S. Medical Techniques – Foreign medical doctors, who are otherwise classifiable as an H-1, may be granted a B-1 visa to enter the U.S. and observe U.S. medical practices while consulting with colleagues on the latest techniques. The B-1 holder cannot receive any remuneration or take care of patients. It is irrelevant whether the doctor has passed the FMGE for the purposes of this visa.