Paths for Physicians: Nonimmigrant and Immigrant Visa Options

May 24th, 2019

The United States needs more physicians.  This need is likely to worsen in the next decade: by 2030 the United States could see a shortage of up to 120,000 physicians according to the Association of American Medical Colleges.  To address this shortage, the U.S. government has provided some unique options for foreign-born physicians to come to the United States and practice medicine.

In this article, we will discuss the various options for physicians to come to the United States, either as a nonimmigrant or as an immigrant, and the considerations that physicians should take into account when deciding whether to apply to enter the United States as a nonimmigrant or an immigrant.

Nonimmigrant Options for Physicians

H-1B Visas for Licensed Physicians

Do I need a U.S. Employer to petition for me?

Yes, but in some cases you can be an owner of the petitioning U.S. Employer company.  Under the H-1B visa program, professionals must be sponsored by a U.S. employer. However, USCIS allows some professionals, including physicians, to apply for H-1B status with companies they own. The USCIS has stated that “entrepreneurs with an ownership stake in their companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H-1B visa, if they can demonstrate that the company has the independent right to control their employment”.  The right to control includes the ability to hire, fire, pay, supervise or otherwise control the employment.

What are the qualifications?  

  • In order to care for patients while in H-1B status, the physician must pass all parts of the USMLE, NBME or FLEX, and the English language proficiency test given by the ECFMG.
  • The physician must be licensed to practice medicine in her intended state of employment. Usually, except for physicians who trained in Canada, this means the physician must have completed a medical residency in the United States.  

Not all H-1B physicians are subject to these requirements. The following physicians are do not have to meet these qualifications:

  • Physicians of national or international renown;
  • Graduates of U.S. medical schools;
  • Physicians who are not practicing patient care (e.g., medical researchers).

How long can I remain in H-1B status?

A physician can hold H-1B status for a maximum of 6 consecutive years: 3 years for the initial petition and another possible 3 year extension.

Special Considerations for this Visa Type –

Most physicians’ H-1B petitions are counted against the H1B cap and are subject to the H1B lottery process, which historically has occurred only once per year in April.  However, the following petitioning employers and physicians do not have to go through the lottery process:

  • A petitioning employer is exempt from the H1B cap if any of the following criteria is met:
    • It is an accredited, nonprofit institution of higher education.
    • It is a nonprofit entity that is related to or affiliated with a qualifying institution of higher education.  For example, teaching hospitals tend to qualify as cap-exempt employers.
    • It is a nonprofit research organization or a governmental research organization.
  • Physicians are permanently exempt from the H-1B cap if he or she has utilized an interested government agency (IGA) waiver (such as the Conrad 30 waiver program) and completed three years required of service in order to waive a J-1 Home Residency Requirement.  

O-1 Extraordinary Ability Visa for Physicians

Do I need a U.S. Employer to petition for me?

Yes. Under the O-1 visa program, the physician must be sponsored by a U.S. employer or agent. Staffing agencies can sponsor O-1 physicians as agents, rather than direct employers and place physicians in jobs as independent contractors. Alternatively, the physicians can form their own companies and self sponsor their O-1 visa in a similar manner to the situation discussed above for H-1B, where the right to control the physician must be proven.

What are the qualifications?  

The physician must be the recipient of either (i) a major, internationally-recognized award or (ii) at least three of the following distinctions:

  • The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;
  • The physician belongs to professional associations requiring outstanding achievements of their members, as judged by recognized national or international experts;
  • The physician has been the subject of articles in major media or trade publications relating to his work;
  • The physician has participated on a panel or as a judge of the work of others in his area of practice;
  • The physician has made original scientific or scholarly contributions of major significance;
  • The physician has written scholarly articles that have been published in professional journals or other major media;
  • The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine;
  • The physician has commanded a high salary or other compensation.

How long can I remain in O-1 status?

Initially you may receive 3 years in O-1 status.  At the end of the 3 year period, the employer must file a 1 year extension request and they can continue to file a 1 year extension requests indefinitely for as long as the physician’s employment continues. Unlike the H-1B visa, there is no limit on how long a physician can hold O-1 status.

Additionally, each new employer is entitled to a new 3 year validity period.  So while if you stay with the same employer for years beyond the first 3 years validity period that employer has to file for you every year, if you move to a new employer then you may receive 3 years of O-1 status.

Special considerations for this visa type –

  • The extraordinary ability test for the O-1 Visa is almost identical to that used for the Employment Based Green Card category of aliens of extraordinary ability. Because of this, if a physician qualifies for an O-1 Visa he or she should also consider filing for a green card in the extraordinary ability category.
  • The O-1 visa is available to physicians that did not receive a J-1 waiver.

E-2 Treaty Investor Visa for Physicians

Do I need a U.S. Employer to petition for me?

No.

What are the qualifications?

  • Must be a national of a treaty country (listed here) and must intend to work full-time to develop his or her own medical practice in the United States rather than be an employee of another medical practice;
  • Must own at least 50 percent of the medical practice and make substantial cash investment into the business.  In determining if an investment is “substantial,” USCIS compares the amount of the investment to the total cost of purchasing or creating the practice.  If the business is relatively inexpensive to purchase or develop from the ground up, then the physician needs to invest most of the required capital;
  • Must be “in the process of investing” at the time of the application.  The funds or assets to be invested must be committed to the investment, and the commitment must be real and irrevocable.  It’s important to note that the purchase of a business that is conditioned upon the issuance of the E-2 visa may still qualify as an irrevocable investment.  Despite the condition, the purchase would constitute a solid commitment if the assets to be used are held in escrow for release or transfer once the condition is met;
  • Must have already spent the money towards the development or purchase of a U.S. based medical practice.  Essentially, if you are able to walk away from the investment without losing anything, you do not qualify for an E-2 visa;
  • Should submit a five-year business plan demonstrating that the medical practice will generate enough revenue to support the physician and his or her family and employ others as well.  The revenue must be able to support more individuals than just the physician.

How long can I remain in E-2 status?

Although the E-2 visa is a non-immigrant visa, these visas can usually be extended an unlimited amount of times in increments of 2 years.  

Immigrant Options for Physicians

In some cases, it is more appropriate for the physician to apply for permanent resident status in the United states.  In deciding whether to apply as a nonimmigrant or an immigrant, the physician should consider the following:

  • Who owns the petition;
  • Who pays the fees;
  • Portability and processing times;
  • The location that they will be practicing in;
  • How long they intend to remain in the United States.

Labor Certification (“PERM”) Process for Physicians

A process called labor certification is the most common way to obtain a green card through employment-sponsorship.  A U.S. employer must be the petition for the physician in this case. As part of the application, the petitioning employer must show that there are no U.S. workers ready, willing and able to fill the position and that the employer has the ability to pay the offered salary.

The recruiting process and the PERM application

In order to show that there are no U.S. workers ready, willing and able to fill the position,  the petitioning employer needs to test the U.S. labor market by advertising the job and conducting a good faith recruitment to determine if there are “available and qualified” US workers to fill the position. The recruitment process must be handled according to very strict Department of Labor (“DOL”) guidelines that do not always align with what the petitioning employer normally does when they recruit for a position.  

If anyone qualified applies for the position in response to these specific recruiting efforts, the petitioning employer needs to interview those applicants. The petitioning employer has no obligation to hire any of them but at that point the employer would be unable to file the PERM application on behalf of the physician.

If there are no qualified or available US workers found to fill the position, the employer will sign a recruitment report describing the recruitment process and its results, and a form called Form ETA 9089 will be filed electronically with the DOL. The DOL can adjudicate the application based simply on the electronic filing or it can audit the application.  Processing times can range between one month and one year for unaudited cases, and up to two years for audited cases.

It’s important to note that the PERM regulations prohibit an employee from paying any costs related to the PERM process, including attorney fees and advertising costs.  

Final Steps and Special Considerations for Physicians

Once the PERM is approved, the next step is to file the Form I-140 immigrant petition with USCIS.  Some physicians can file their I-485 adjustment of status application concurrently with the I-140 petition, depending on what country they are from.  

Physicians who are in the process of fulfilling the three years of J-1 service may not file an adjustment of status application based on a PERM until they have completed the service commitment.

Physicians who have backlogged priority dates, such as those from India and China, may not file an adjustment of status application unless they have a current priority date. For PERM cases, the priority date is the date on which the PERM application is filed, but that date does not lock in until the I-140 is approved.

Portability

An employee may not port a PERM-based green card petition to a subsequent employer unless he or she has an adjustment of status application that has been pending for 180 days. This means that physicians with backlogged priority dates who are unable to file adjustment of status applications often may not port a PERM-based petition to a subsequent employer.  In this situation, physicians can port their priority date and obtain H-1B extensions beyond the six-year limit if they have an approved I-140.

National Interest Waivers for Physicians (PNIW)

Congress has created a special national interest waiver program for foreign physicians. For a NIW application, a physician does not need an employer to sponsor him or her. She or he can apply as an independent contractor so long as he commits for working for five years under special conditions.

To qualify, an applying physician must:

  • Work in a primary care, including as a general practitioner, family practice petitioner, general internist, pediatrician, obstetrician/gynecologist, or psychiatrist, or be a specialty physician;
  • Agree to practice medicine in an underserved area designated as underserved by the federal Department of Health and Human Services (“HHS”) (further information here) for a period of five years;
  • Submit an employment agreement with a term of five years. If the physician will be self-employed as an independent contractor, he or she may execute an affidavit detailing the plans to establish the practice;
  • Submit a letter from the relevant state’s department of health supporting the physician’s work as in the “public interest.” If a physician is also obtaining a J-1 waiver in the state, often the state will add the public interest language to the waiver recommendation letter, and that letter may be used for both the J-1 waiver and the PNIW applications.  Each state has its own rules and processes for issuing PNIW support letters.

Extraordinary Ability Alien Petitions for Physicians

In addition to the national interest waiver for advanced degree or exceptional aliens, extraordinary ability aliens are also eligible for permanent resident status. Like the NIW, an employer sponsor is not required. However, an eligible physician must be extremely accomplished and prove that she has “a level of expertise indicating that [she] is one of the small percentage who has risen to the very top of the field of endeavor.”  The O-1 visa qualifications listed above also apply to the extraordinary ability alien.