Nonimmigrant (Temporary) Work Categories
J-1 Clinical Exchange Programs
Physicians can work, on a temporary basis, up to a maximum period of seven years in a medical residency or fellowship program. They are sponsored in a program under the Educational Commission on Foreign Medical Graduates (ECFMG) and receive a Form DS-2019 to apply for the J-1 visa. Physicians must have passed Parts I and II of the U.S. Medical Licensing Examination (USMLE), or appropriate older examinations, and they must demonstrate proficiency in oral and written English. Physicians coming to the U.S. under such programs are required to return to their home country of residence for two years upon completion of their residency or fellowship.
J-1 Non-Clinical Programs
Physicians can work, on a temporary basis, up to a maximum period of three years in a non-clinical or fellowship program. They may be sponsored in a program under ECFMG or other program sponsor, and receive a Form DS-2019 to apply for the J-1 visa. Only incidental patient care is permitted. Physicians coming to the U.S. under such programs may be required to return to their home country of residence for two years, depending on program funding and country of origin.
J-1 Public Health/Preventative Medicine Program
Physicians can work, on a temporary basis, up to a maximum period of three years in a public health or preventative medicine program. They may be sponsored in a program under various educational or public health institutions, and receive a Form DS-2019 to apply for the J-1 visa. Physicians coming to the U.S. under such programs may be required to return to their home country of residence for two years, depending on program funding and country of origin.
H-1B Temporary Worker Engaged in Patient Care
Physicians can work, on a temporary basis, for an initial period of three years up to a maximum period of six years for a public or private employer. To qualify for an H-1B visa as a clinical physician, the foreign national must demonstrate that he or she possesses certain credentials and satisfies licensure requirements. In particular, in order to obtain an H-1B visa to provide direct patient care, the foreign national must either have an unrestricted license or other authorization required by the state of intended employment to practice medicine, or he or she must otherwise be exempt by law. The foreign national physician must either demonstrate that he or she has graduated from an accredited medical school in the U.S. or has achieved the equivalent through a first professional degree in medicine from a foreign country. Alternatively, he or she may demonstrate that he or she has a full and unrestricted medical license from a foreign country. Unless the foreign national has graduated from a U.S. medical school, he or she can only obtain an H-1B visa to perform clinical work if he or she has passed both parts of the two-part Federal Licensing Examination (FLEX) or acceptable equivalents, namely either all three parts of the USMLE or all three parts of the National Board of Medical Examiners (NBME) certifying examinations. The state licensing boards for most states in the U.S. regard graduate medical education in Canada as equivalent to a U.S. medical degree. Those states that do not endorse the Licentiate of the Medical Council of Canada (LMCC) would require individuals to take the USMLE examinations in order to provide patient care via an H-1B visa. A foreign national who wishes to pursue an H-1B visa to provide patient care must also demonstrate proficiency in oral and written English. A Labor Condition Application (LCA) and Temporary Worker Petition must be filed by the employer with the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) respectively.
H-1B Temporary Worker Engaged in Teaching/Research
Physicians can work, on a temporary basis, for an initial period of three years up to a maximum period of six years for a public or private nonprofit educational or research institution or agency. Only incidental patient care required by the program is permitted. There may be licensure requirements. A Labor Condition Application (LCA) and Temporary Worker Petition must be filed by the employer with the DOL and USCIS respectively.
TN-1 Research/Teaching – Canadian and Mexicans Only
Physicians can work, on a temporary basis, for an initial period of three years (no mandated maximum period) for a public or private nonprofit educational or research institution or agency. Only incidental patient care required by the program is permitted. A U.S. state license may be required. The foreign national must possess an M.D., state or provincial license. Mexican citizens require a visa to request admission to the U.S., though a USCIS-approved petition is not required.
O-1 Extraordinary Ability (Clinical or Research)
Physicians can work, on a temporary basis, for an initial period of up to three years for a public or private employer. The foreign national must possess a state license in the state of employment in order to engage in patient care. The O-1 visa requires proof of “extraordinary ability”, such as documentary evidence of receipt of nationally or internationally recognized prizes or awards; memberships in associations in the field for which classification is sought, which require outstanding achievements; authorship of scholarly articles; original contributions of major significance; etc., and must include a peer advisory opinion letter. A Temporary Worker Petition must be filed by the employer with USCIS.
Immigrant (Permanent) Categories – Based on Employment
EB-1 Extraordinary Alien
Physicians who demonstrate extraordinary ability may self-sponsor to immigrate by filing a petition with USCIS. An extraordinary ability petition must be accompanied by evidence that the foreign national has sustained national or international acclaim. This evidence includes demonstrating receipt of nationally or internationally recognized prizes or awards; membership in associations for which classification is sought, which require outstanding achievements; published materials about the individual; participation as a judge of others’ works; original contributions of major significance to the field; authorship of scholarly articles, etc. No sponsor or labor certification application are required. However, the foreign national must demonstrate that he or she will continue to work in his or her area of expertise once granted permanent residence status.
EB-1 Outstanding Professor or Researcher
Physicians who are Outstanding Professors or Researchers may be sponsored to immigrate by a public or private organization (if it employs at least three full-time researchers). This category requires international recognition as outstanding in a specific field. The outstanding professor or researcher must have at least three years’ experience in teaching and/or research in that field and must enter the U.S. in a tenured or tenure-track teaching or comparable research position. Documentary evidence satisfying two of the following criteria must be submitted: receipt of major prizes or awards; membership in associations that require outstanding achievements; published materials written by others about the foreign national’s work; participation as a judge of others’ work; original scientific or scholarly research contributions to the field; and authorship of scholarly books or articles in scholarly journals with international circulation. The outstanding professor or researcher cannot petition for himself or herself and the employer/sponsor must file the petition with USCIS.
EB-2 Advanced Degreed Professional and National Interest Waiver
Physicians who receive a National Interest Waiver (NIW) may self-sponsor to immigrate to the U.S. The foreign physician must agree to work full-time as a clinical physician in a Health Professional Shortage Area (HPSA), in a Medically Underserved Area (MUA), or for the Veterans Administration (VA). To qualify for the NIW, a federal agency or department of public health in any state must determine that the physician’s employment is in the public interest. The physician may include time spent toward completion of a three-year J-1 waiver commitment as part of the five-year period of service required for the physician NIW petition, but not time spent in J-1 status itself. A petition must be filed with USCIS. There is no requirement of a labor certification.
EB-2 Advanced Degreed Professional
Physicians who are sponsored by an employer, through the filing of a labor certification application, may immigrate to the U.S. It must be demonstrated, through recruitment, that there are no qualified U.S. workers for the position. The physician must meet the minimum qualifications for the position at the time the advertisements are run. This may include standard physician qualifications, such as proper license and board certification, passage of the two-part FLEX examination, or all three parts of the USMLE or all three parts of the NBME, and immigration-specific requirements, including a certificate from ECFMG. The employer submits a labor certification application to the DOL. Once that application is certified, the employer can then file an I-140 petition for the physician with the USCIS. If a visa number is immediately available, the physician and his or her family can apply to adjust status to permanent resident (if within the U.S. in valid status) or process an immigrant visa at a U.S. consulate or embassy abroad.
Foreign Physicians in the United States Waiver of Two-Year Home Residence Requirement
Foreign physicians who enter the U.S. on a J-1 program to begin a clinical medical residency program are required to return to their home country of residence for two years upon completion of the program. A J-1 physician, subject to the two-year home residence requirement, may neither obtain an H-1B visa, an L-1 visa, or change nonimmigrant status within the U.S., nor adjust status to permanent resident or obtain an immigrant visa without complying with the two-year home residence requirement or obtaining a waiver of the requirement. There are three bases for obtaining a waiver of the two-year home residence requirement as described below.
1. Exceptional Hardship
Requires a showing that fulfillment of the two-year home residency requirement will subject the physician’s U.S. citizen or U.S. permanent resident spouse or child to exceptional hardship – mere separation of the family is insufficient. USCIS must initially make a determination of hardship, following which the case is submitted to the U.S. Department of State (DOS) for input before approval.
Requires a showing that the physician would be subject to persecution on the basis of race, religion or political opinion, should he or she return to the home country. An initial finding of persecution must be made by USCIS, which then sends the case to the DOS for input before the application is approved.
3. Interested Government Agency (IGA) and Conrad 30 Agencies (ISA)
Requires a favorable recommendation by an interested government agency (IGA) suggesting that the foreign national physician’s continued residence/employment in the U.S. is in the public interest. Physician waivers may now also be issued by the Departments of Health of various states. For clinical service-based waivers, there are a number of IGAs with established programs specifically aimed at bringing physicians into underserved communities to provide clinical medical services. The Delta Regional Authority (DRA), the Appalachian Regional Commission (ARC), the Veterans Administration (VA), the Department of Health and Human Services (HHS), and the congressionally-mandated Conrad State 30 program are agencies that may recommend such waivers.
This last category of waivers falls into one of the following general groups:
- Employment by a federal agency, such as the Department of Veteran’s Affairs;
- Recognition of outstanding research and academic achievements, as determined by the HHS (for researchers only, not clinicians)
- Service to medically-underserved patient populations so as to allow either a state department of health or a federal agency to recommend a waiver as a matter of public interest.
Some of these programs will only recommend a waiver for physicians who practice “primary care”. The IGA or ISA makes a recommendation to the DOS, which is then forwarded to USCIS for approval.
No Objection Statement
With the exception of J-1 physicians engaged in medical education or training, a “no objection” letter from the physician’s home country will also serve to waive the two-year home residence requirement. This waiver ground requires a letter from the home country’s government stating that it has no objection to the physician not fulfilling the requirement. As mentioned, this option is not available to foreign medical graduates (clinical residents) engaged in medical education or training, or when U.S. government funding has been received for the purpose of the exchange. A formal, diplomatic letter from the home government must be sent to the DOS for recommendation, and then to USCIS