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Immigration Knowledge Essential to Recruiting IMGs
Jul. - Aug. 2000
NOTE: Carl Shusterman served as Trial Attorney with the U.S. Immigration & Naturalization Service (1976-82) and is principal of the Los Angeles-based Law Offices of Carl Shusterman. He may be reached at carl@shusterman.com or at 213-623-4592. To review a list of all HPSAs nationally, access www.shusterman.com and click on “physicians.” The preceding is intended as a brief summary and does not constitute specific legal advice.
By Carl Shusterman
For many years, the United States was a closed shop for most foreign-born physicians. Today, however, as many as 30% of all physicians in some specialties are international medical graduates (IMGs) and the majority of these physicians are foreign-born.
Because most of these physicians must pass through the immigration system in order to work in the U.S., it is important for recruiters to understand the basics of immigration law as it applies to physicians. Fundamental immigration terms and concepts include:
Requirements Needed to Practice
IMGs need the following in order to practice medicine in the United States: 1) A degree from a foreign medical school. 2) An Educational Commission on Foreign Medical Graduates (ECFMG) certificate showing the physician has knowledge equivalent to that gained in a U.S. medical school. To obtain an ECFMG certificate, IMGs must pass the United States Medical Licensing Exam Parts 1 & 2, pass an English language exam, and pass the Clinical Skills Assessment (CSA) exam.
Because many IMGs are reluctant or unable to take the CSA exam, the number of IMGs applying to U.S. residencies is declining. Indeed, the National Residency Matching Program reports that the number of IMGs applying for the match declined 21% from 1999 to 2000. If this trend continues, the number of IMGs entering the United States could decline.
The H-1B Visa
The term “H-1B” is becoming a household word as Congress debates whether or not to increase the annual cap on this temporary work visa, which now stands at 115,000 per year. The H-1B is an employer-sponsored visa that allows foreign professionals to work in the U.S. for up to six years. At the end of that time, IMGs must leave the U.S. for one year, unless they have obtained permanent residence (a green card) or have obtained another type of work visa. An increasing number of IMGs enter the U.S. on H-1B visas in order to enter their residency programs, with the residency programs acting as the “employer.”
Before filing for an H-1B, a physician must be licensed in the state of intended employment and the employer must file a Labor Condition Application with the U.S. Department of Labor. Once these steps are completed, the employer must file an H-1B petition with the U.S. Immigration and Naturalization Service (INS). In the past, the time frame to obtain an H-1B has been about 60 days, plus the time it takes for the physician to obtain a state license. Now, however, we are reaching the annual cap on H-1B visas earlier and earlier.
All H-1Bs for fiscal year 2000 were taken by March 21 of this year and additional H-1Bs will not be available until October 2000.
Permanent Residence (the Green Card)
There are several avenues IMGs can take to obtain a green card. A standard approach is called “Labor Certification” through “Reduction in Recruitment.” This is the process in which the employer must actively recruit for the job for six months and must advertise for the position in a major national publication such as the New England Journal of Medicine or Journal of the American Medical Association. While the time to complete labor certification has decreased, INS processing is still slow, so obtaining a green card can take years.
This is an important point to consider if you are attempting to obtain a green card for an IMG currently on an H-1B. Will the IMG’s H-1B expire before a green card can be obtained? If so, you may wish to pursue a faster method of obtaining a green card.
One expedited method for obtaining a green card is through a “National Interest Waiver,” which does not require employers to go through the labor certification process. Instead, they must show that their communities historically have had a difficult time recruiting physicians. Generally, employers must be in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) to obtain a National Interest Waiver on behalf of an IMG. Congress and the President recently restored the ability of certain physicians to obtain National Interest Waivers.
In addition, an IMG might qualify for a green card through a U.S. relative, through the visa lottery, or other possible channels.
J Waivers
Many IMGs still come to the U.S. to train on Exchange Visitor or “J visas.” This type of visa requires the holder to return to their home country for two years before being able to practice medicine in the U.S. However, an exception to this rule may be obtained if a U.S. government agency such as the Agriculture Department will sponsor the IMG for a waiver (approximately 5,000 IMGs are sponsored annually for J waivers). Employers must be located in HPSAs or MUAs to obtain waivers for J visa holders. In addition, over 40 states participate in the “Conrad 20” program, in which each state’s Department of Health may sponsor 20 J waivers a year for IMGs, provided their employers are located in HPSAs or MUAs.
Canadian Physicians
Canadian-trained physicians are not considered IMGs. They may obtain medical licenses in most U.S. states based on their Canadian training and exams. They also may obtain green cards in most states without taking a U.S. exam, though it now generally takes several years to complete the process.
Interestingly, Canadian physicians cannot obtain H-1B visas unless they have a U.S. qualifying exam (United States Medical Licensing Exam, Federal Licensing Exam, National Board of Medical Examiners). Those who do have such an exam often are good candidates for immigration, as they can obtain an H-1B visa and then “adjust their status” to permanent resident while working in the U.S.
These basic concepts are important to keep in mind as you consider the steps necessary to employ foreign-born physicians. However, each case generally has its own unique challenges and opportunities. Make sure you have a clear, defined plan, with appropriate timetables for completion that all parties understand, before you enter into an employment agreement with a foreign-born physician.
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