IMMIGRATION OPTIONS FOR HEALTHCARE PROFESSIONALS

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1 IMMIGRATION OPTIONS FOR HEALTHCARE PROFESSIONALS PRESENTATION FOR THE MGH POST- DOCS ASSOCIATION January 13, 2014 Presented by: Iandoli & Desai, PC Richard Iandoli Prasant Desai Eoin Reilly Madeline Cronin

2 OVERVIEW OF US IMMIGRATION U.S. CITIZENS Birth or Naturalization FOREIGN NATIONALS Lawful Permanent Residents Immigrants ( Green Card Holders) Nonimmigrants Persons temporarily permitted to in U.S. F s, J,s O s & H s Refugees/Asylees/TPS Persons present without lawful status 2

3 POPULAR NONIMMIGRANT WORK VISAS H-1B Temporary professionals H 1B1 - Singaporeans/Chileans TN Canadians & Mexicans under NAFTA E-3 Australians only E-1/E-2 Treaty traders/treaty Investors O Persons of extraordinary ability L Intra-company transferees J Exchange scholars/trainees 3

4 TWO YEAR HOME RESIDENCE REQUIREMENT FOR J-1 EXCHANGE SCHOLARS & CLINICIANS The 2-year Home Residency Requirement (2YHRR) applies to three types: I. J-1 Physicians receiving medical training, clinical residency, or fellowship; II. J-1 visitors who receive government funding; III. Home country is in need of their skills/talents ( Skills List ) MAY NOT FILE FOR H-1B, L-1 STATUS, OR PERMANENT RESIDENCE UNLESS FULFILL OR WAIVE 2YHRR 4

5 J-1 WAIVERS 2YHRR can be waived Four types of waivers: i. Persecution ii. Exceptional Hardship iii. No objection statement (not applicable to Medical Trainees) iv. Interested Government Agency (IGA) 5

6 J-1 WAIVERS BASED UPON PERSECUTION OR HARDSHIP Persecution: J-1 will suffer persecution on account of race, religion, or political opinion if he/she returns to the home country or country of last permanent residence Hardship: 2YHRR waived if it would subject J-1 s U.S. citizen or permanent residence spouse and/or child to exceptional hardship Both types of waivers are filed first with Department of Homeland Security (DHS) California Service Center via Form I-612 If DHS approves, it then requires Department of State concurrence Timing issues 6

7 J-1 WAIVER NO OBJECTION NOT available to foreign medical graduates engaged in medical education or training Is available to J-1 physicians whose U.S. programs involve observation, consultation, teaching, or research. Process: Department of State Case Registration; Request to home country s embassy in Washington, D.C.; and Coordination with US Citizenship & Immigration Services 7

8 J-1 WAIVERS INTERESTED GOVERNMENT AGENCY FEDERAL GOVERNMENT AGENCIES CONRAD WAIVER: Clinical Physician Waivers - Department of Health & Human Services primary care. Work at facility located within an underserved area - Conrad 30 Programs Each state may sponsor up to 30 physicians per year - Specialists 8

9 INTERESTED GOVERNMENT AGENCY RESEARCH-BASED J-1 WAIVER Employer files application requesting gov t support for waiver Must demonstrate: Scientific interest J1 s specific research role in program Extent of leadership role of J1 holder, other factors Unique qualifications of J-1 holder Review Process: 1. Executive Secretary of HHS 2. Technical review by HHS scientists 3. HHS Waiver Review Board 9

10 O-1 NONIMMIGRANT VISA Temporary work visa, eligibility requirements similar to EB-1(a) (person of extraordinary ability) permanent residence category Must be sponsored by a U.S. employer or agent, for an "event (scientific projects, academic years, lecture series, conferences, business projects, or tours) Maybe only option for those on J-1 visa with no time left and who are subject to the two-year home residency requirement

11 LAWFUL PERMANENT RESIDENT- IMMIGRANT CATEGORIES Employment Based Family Based Diversity Lottery Investment Asylum/Refugee Cancellation of Removal Registry Others: CIR, VAWA, Etc. 11

12 CATEGORY & COUNTRY QUOTA BACKLOGS Significant backlogs in Employment-based cases have developed Visa Bulletin FEBRUARY CATEGORY All OTHER COUNTRIES CHINA MAINLAND BORN INDIA MEXICO PHILLIPPINES 1 st C C C C C 2 nd C 08 Jan Nov 04 C C 3 rd 01 Jun Jun Sep Jun Apr

13 GREEN CARD PROCESS GOING FROM TEMPORARY TO PERMANENT STATUS Temporary Status Must always maintain temporary status and not work without authorization until time to file for adjustment of status to permanent residence Typical categories: F1, J1, O-1, H-1B Typically may not leave US once residence application filed unless you have received Advance Parole permission to travel Gaining Residence Status Process starts with filing a labor certification app. or immigrant petition on Form I-140. This gains a Priority Date (PD)in quota line. May concurrently file residence app on Form I- 485 with the Form I-140 if PD is current (see Visa Bulletin). May also file for work and travel permission with Form I-485.

14 MAIN EMPLOYMENT BASED PERMANENT RESIDENCE CATEGORIES EB-1(a) Person of Extraordinary Ability EB-1(b) Outstanding Professor or Researcher EB-1(c) International Manager or Executive EB-2 Masters Degree/Exceptional Ability EB-3 Bachelors Degree/Other Workers 14

15 EB-1(A): PERSON OF EXTRAORDINARY ABILITY The EB-1(a) category is for aliens of extraordinary ability in the sciences, arts, education, business or athletics. May Self-Sponsor. Same criteria as O-1 Nonimmigrant category but more rigorous USCIS adjudication 15

16 EB-1(A): PERSON OF EXTRAORDINARY ABILITY, CRITERIA TWO STEP APPROACH STEP 1: MUST HAVE RECEIVED A MAJOR PRIZE OR - MEET AT LEAST THREE CRITERIA SET OUT IN REGULATIONS STEP 2: FINAL MERITS DETERMINATION BOTH STEPS ARE SUBJECTIVE

17 MUST PROVE: Receipt of "major, internationally recognized award, such as the Nobel Prize, OR EB-1(A) STEP 1: MEETING THE CRITERIA MUST MEET 3 OF THE FOLLOWING: Receipt of lesser nationally or internationally recognized prizes/awards Member in associations that demand outstanding achievement Published material about you in professional publications

18 EB-1(A): PERSON OF EXTRAORDINARY ABILITY, CRITERIA (CONTINUED) Judged the work of others, either individually or on a panel peer reviewer Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance Authorship of scholarly articles in professional publications or other major media Leading or critical role in distinguished organizations Commanded large salary Miscellaneous, other comparable evidence

19 EB-1(A) STEP 2 THE FINAL MERITS REVIEW USCIS will evaluate all of the evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has sustained national or international acclaim and that the beneficiary s achievements have been recognized in the field of expertise, indicating that the beneficiary is one of that small percentage who has rise to the very top of the field of endeavor.

20 EB-1(B) OUTSTANDING PROFESSOR OR RESEARCHER Professor or Researcher is recognized internationally as outstanding in the academic field. Must have sponsorship by and an offer of employment from a U.S. university or institution of higher learning or private research entity (with at least 3 f/t researchers) for a tenure or tenure-track teaching position in your academic field, or a permanent research position in your academic field; AND At least 3 years of teaching and/or research in your academic field; AND At least two of the following eligibility criteria: 20

21 EB-1(B) ELIGIBILITY CRITERIA (CONTINUED) Receipt of major prizes or awards for outstanding achievement Membership in associations that require their members to demonstrate outstanding achievements Published material in professional publications written by others about the alien's work in the academic field Participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field Original scientific or scholarly research contributions in the field Authorship of scholarly books or articles (in scholarly journals with international circulation) in the field 21

22 EB-2 MASTERS DEGREE Have U.S. Masters Degree (foreign equivalent accepted) AND Labor Certification, OR National Interest Waiver (NIW) 2 types: - General - Physicians only 22

23 NATIONAL INTEREST WAIVER GENERALLY MUST PROVE THAT YOU ARE EXCEPTIONAL MAY SELF-SPONSOR NO LABOR CERTIFICATION REQUIRED MUST DEMONSTRATE: a. your work is intrinsically valuable b. your work is national in scope, and c. your role overcomes the Government s interest in protecting the U.S. job market 23

24 EXAMPLES OF SUCCESSFUL NATIONAL INTEREST WAIVER CASES Physician Researchers in various areas of biomedical research supported by National Institutes of Health grants Endocrinologist with some research, not supported by NIH grants but a key physician at leading hospital Others?

25 NATIONAL INTEREST WAIVER PHYSICIANS 5-year commitment to work in a Medically Underserved Area (See J-1 Conrad Waiver) State Department of Public Health must agree that work is in the public interest 5 years can be as an H-1B or O-1 or with Employment Authorization 25

26 PERMANENT EMPLOYMENT CERTIFICATION (LABOR CERTIFICATION) Labor Certification is the authorization by the U.S. Department of Labor for a U.S. employer to sponsor an alien worker after a search for qualified workers at the minimum education, skills and training necessary to do the job at the required wage The current method of Labor Certification is called PERM and is done on-line Perm cases are currently averaging under 4 to 12 months after filing 26

27 SPECIAL HANDLING LABOR CERTIFICATION Special Handling: available only to colleges and universities. Requirements: Position offered must be full time and permanent Position must involve some classroom teaching Research positions may qualify as long as there is some teaching component Institution must demonstrate that sponsored worker was the most qualified candidate (specific procedures apply) Must file application within 18 months of selection (generally, the offer date) 27

28 SCHEDULE A LABOR CERTIFICATION Pre-certified occupations: Group I: Nurses, Physical Therapists Group II: Alien of exceptional ability in sciences or arts (requirements similar to extraordinary ability)

29 RECAP OF PREFERENCE CATEGORIES EB-1 s do not need Labor Certification (EB-1A s may self sponsor. EB-1B s require a sponsor.) EB-2 s do need Labor Certification & sponsorship except those with a National Interest Waiver (NIW s may also self sponsor) EB-3 s do need Labor Certification 29

30 FAMILY BASED Sponsored by U.S. Citizen: Parent Spouse Son or Daughter married or unmarried Sister or Brother Child (under 21) Refer to Visa Bulletin for family-based backlog information 30

31 FAMILY BASED IMMIGRATION (CONTINUED) Immediate relatives (IR) of U.S. Citizens: Parent, spouse or unmarried minor child (under 21) of a U.S. Citizen - The sponsor of a parent must be 21 years or older - There is no annual quota for IR s - IR s who have been inspected & admitted may apply for adjustment of status in the U.S., even if they violate their status or work illegally Sponsored by Lawful Permanent Resident Spouse - Unmarried son or daughter Refer to Visa Bulletin for backlog information

32 COMPREHENSIVE IMMIGRATION REFORM (CIR) POSSIBILITIES 13-year, multi-stage path to citizenship for 12 million undocumented Dual intent for student visa holders Increasing the H-1B quota Authorizing employment for spouses of H-1B visa holders Recapturing unused green card numbers Increase in Immigrant Visa quotas Adding new merit-based immigrant & nonimmigrant categories

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