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Healthcare Immigration

US immigration options for nurses, physicians, physical therapists, and other health professionals vary drastically from most other professionals. Antonini & Cohen partners with some of the nation’s largest hospitals and hospital systems, as well as smaller healthcare employers, individual health professionals, and other medical institutions to navigate the complex immigration process for health professionals.

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What Is Involved in Healthcare Immigration?

Foreign healthcare workers play a pivotal role in the US healthcare system. The interface between our healthcare system and US immigration law is complex and constantly evolving. The attorneys at Antonini & Cohen bring a wealth of knowledge in handling complex healthcare immigration cases.

H-1B Visa for Physicians

Foreign healthcare workers play a pivotal role in the US healthcare system. A basic nonimmigrant classification for foreign healthcare workers is the H-1B temporary worker visa. The H-1B visa for healthcare gives foreign medical professionals or graduates the option of living and working in the United States. Individuals who will be temporarily employed in the United States in a “specialty occupation” may be eligible for H-1B status. Physicians, as well as other healthcare professionals, typically do not have a problem meeting the “specialty occupation” requirement as they have a theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree.

However, there are complexities associated with a healthcare H-1B, and the strategy largely depends on the individual’s specific situation or long-term plans for working in the United States with their petitioning employer.

Physicians working in academic positions involving research and teaching, graduate medical training (residencies and fellowship), and post-training clinical positions might qualify as physicians for an H-1B. Most physicians in the US on a J-1 visa who seek to remain in the US after training typically must switch to H-1B status after receiving a waiver of the J-1 home residency requirement. If the employee is in the US on a J-1 or F-1, they may be able to apply for a change of status within the US. Otherwise, the employee applies for an H-1B visa at a US consulate and enters the US in H-1B status.

The H-1B application to USCIS must include: information about the employer’s business, the type of work the foreign national will perform, evidence of the beneficiary’s qualifications (including proof of USMLE passage, ECFMG certification, and medical licensure in the state of intended employment), and a Labor Condition Application (LCA) certified by the U.S. Department of Labor. H-1B visas are issued for three years at a time with a six-year maximum limit on the time that an individual may be in H-1B status. However, there are certain extensions available for individuals in the process of applying for an employment-based Green Card.

Schedule A for Physicians (I-140 Form)

Most employment-based Green Card applications require a PERM Labor Certification, which the U.S. Department of Labor certifies there are no available qualified, able workers and that hiring non-US workers will not negatively affect the US. Cases falling under Schedule A bypass the need for a test of the labor market and application with the U.S. Department of Labor under the standard PERM labor certification process. While this does not necessarily mean that all cases are approvable or will be handled quickly, this process allows such cases to skip the first and most time-consuming part of the employment-based Green Card process. Schedule A cases are initiated by filing an I-140 petition with USCIS in either the EB-2 or EB-3 classification, depending upon the position requirements.

The U.S. Department of Labor has a list of “Schedule A” occupations, which currently includes two groups:

Group I: Physical Therapists and Professional Nurses.

Group II: Individuals of “exceptional ability” in the sciences and arts, including college and university teachers.

J-1 Waiver for Physicians

International Medical Graduates (IMGs) often obtain J-1 visas to enter the US for residencies and fellowships. Such IMGs must return to their home country for a minimum of two years once their training is completed. Generally, IMGs who complete a US medical residency or fellowship program are subject to this requirement and must either return to their home country for two years at the conclusion of their J-1 program or apply for a waiver of the home residency requirement. Without satisfaction or waiver of this requirement, the J-1 exchange visitor will be unable to change status within the US to most other statuses, obtain an H, L, or K visa in most cases, or obtain US permanent residence.

J waivers for physicians are generally sponsored by an Interested Government Agency (IGA), either a state Conrad 30 program or a federal agency.

The Conrad 30 State program provides waivers for J-1 physicians subject to the two-year residency requirement due to their participation in graduate medical education. These waivers are available for doctors who agree to work in Health Professional Shortage Areas (HPSAs) or Medically Underserved Areas (MUAs) for a minimum of three years. The Conrad waiver program makes it possible for every state (as well as the District of Columbia, Puerto Rico, and Guam) to sponsor up to 30 J-1 physicians per fiscal year. The program has been essential in reducing severe physician shortages in underserved areas. Every state may request a waiver for a clinician who agrees to practice full-time for three years in an underserved area designated by the U.S. Department of Health and Human Services.

There are also a few IGAs that similarly sponsor J-1 physicians to work in shortage areas, such as the Delta Regional Authority, the Appalachian Regional Commission, the U.S. Department of Health and Human Services (clinical waiver), the Department of Veterans Affairs, the Southeast Crescent Regional Commission and the Northern Border Regional Commission. The state or the IGA will forward its waiver recommendation to the Department of State, who will grant or deny the waiver.

A smaller number of J waivers are obtained if it can be shown that the physician would be persecuted in their home country because of their race, religion, or political opinion. A doctor may also receive a waiver by demonstrating that their US citizen or lawful permanent spouse or children would suffer “exceptional hardship” if they were forced to return to their home country for two years. The no-objection waiver is not available for J-1s engaged in graduate medical education.

A J-2 waiver is also available directly through the Department of State if the J-1 spouse dies, the J-1 and J-2 spouses divorce, or the J-2 child turns 21.

EB-2 Visa for Physicians (National Interest Waiver)

The Physician National Interest Waiver (PNIW) is a Green Card category created by Congress to recognize that physicians working in underserved areas of the United States serve the national interest. The EB-2 PNIW typically requires a job offer and labor certification. The EB-2 PNIW waives that requirement, but the physician must agree to work full-time in a medically underserved area. To qualify, a physician must work five years in an area designated by the U.S. Department of Health and Human Services (HHS) as having a shortage of physicians. Generally, the five-year commitment must be stated plainly in an employment agreement, and the physician must complete the five years of service prior to receiving a Green Card. If the physician will be self-employed, he or she may execute an affidavit detailing their plans to establish the practice.

A PNIW application must be accompanied by a letter from the relevant state’s department of health detailing how the physician’s work serves the “public interest.” States may support an unlimited number of PNIWs in a given year. Each state has its own rules and procedures for issuing PNIW support letters, so it is important to consult those rules before pursuing a PNIW petition.

What are my next steps?

Healthcare Immigration is complex and requires the knowledge and expertise of a competent and experienced immigration attorney. At Antonini & Cohen, we have the knowledge and experience to successfully file on behalf of both healthcare providers and physicians.

We know how. We fight harder.

Call us 470-428-3200