Hey Doc, What s Your Status?

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1 Hey Doc, What s Your Status? IMMIGRATION OPTIONS FOR FOREIGN PHYSICIANS Presented By Leibl & Kirkwood

2 About Leibl & Kirkwood Leibl & Kirkwood Geoffrey Leibl and Joe Kirkwood are immigration attorneys and the founding partners in the law firm of Leibl&Kirkwood, located in San Diego, California. Leibl & Kirkwood is a law firm dedicated exclusively to the practice of immigration law and has assisted hundreds of physicians immigrate to the United States over the last 20 years.

3 Typical Concerns of Recruiters Are the doctors as qualified as their American counterparts? Worried that their English skills may not be good enough My client needs a specialist and I ve heard that it is very hard to for specialists to get waivers My client is not in an underserved area

4 Why Employers Need to Consider FMGs Too many not to look Willing to work in less attractive locations The immigration process can actually serve as a retention tool

5 How Do Physicians Get to the U.S.? J-1 visas for residency training and fellowships H-1B visas for researchers, residents, fellows and clinicians O-1 visas for physicians with extraordinary ability E-2 visas for physicians setting up practices in the U.S. Families, non-md categories

6 Role of Graduate Medical Education (GME) Most trainees come under J-1 visas J-1 visa program administered by ECFMG All J-1 clinical physicians subject to the twoyear home residence requirement (no exceptions)

7 What Does the Home Residency Requirement Mean? Not eligible for an immigrant visa/green card without a waiver No change of status from J-1 to other non-immigrant visa categories without a waiver

8 J-1 Waivers No objection letters won t work for most doctor cases Interested government agencies Exceptional hardship Persecution

9 Interested Government Agency Cases VA Hospitals HHS Clinical Cases State 30 Programs (Conrad Waiver)

10 Conrad State 30 Waiver Program Enables states to recommend waivers Administered by state departments of health Purpose: to expand safety net to indigent and medically underserved New waiver numbers available on October 1

11 Basic Requirements Leibl & Kirkwood Position is in a shortage area HPSA or MUA/MUP or in MHPSA for Psychiatrists (except certain State 30 flexibility slots) Three year commitment to work in H-1B status 40 hours per week in shortage area Can be either primary or specialty medicine depending on program Most states will now consider specialists

12 Other Requirements Employer must accept Medicare, Medicaid and indigent patients Document previous recruitment Timing is important can take several months to process

13 H-1B Visas Must pay the prevailing wage Six year maximum Can be secured quickly Cap applies to many cases Portable unless previously had J-1 visa Employer specific

14 The H-1B Cap Most MDs exempt for their training programs First position subject to the H-1B cap after finishing training will be where cap issues arises Universities with non-profit research facilities exempt

15 The H-1B Cap (Continued) Non-profits affiliated with universities or non-profit research intuitions exempt Exemption based on location of employer, not who is signing the paycheck Only one location needs to be exempt if MD working at multiple places

16 Option 1 Green Cards: An Alternative to the H-1B? National Interest Waiver Option 2 Labor Certification Leibl & Kirkwood Note: Longer waits for Indian and Chinese Nationals

17 National Interest Waivers Five year commitment Primary or Specialty care Shortage area Physician Need Statement from state department of health Can apply for adjustment at start of processing except for Indian and Chinese Nationals

18 Labor Certification Application/PERM Process Objectives of Process o Confirm there are no fully qualified applicants for the position o Wages are at the prevailing wage rate Requires employer sponsorship and involvement

19 Steps to PERM Case Leibl & Kirkwood Advertising and recruitment per DOL standards Filing PERM application to DOL Upon approval, filing I-140 immigrant visa petition to USCIS Filing I-485 adjustment of status application

20 Advertising/Recruitment Leibl & Kirkwood Meet standards set by Department of Labor Test thoroughly U.S. labor market Goal: to determine unavailability of fully qualified U.S. workers

21 Filing PERM Application Leibl & Kirkwood Electronic filing to Department of Labor Outcome: o Approval o Denial o Audit

22 Filing I-140 to U.S. Citizenship and Immigration Services (USCIS) Need to show employer s ability to pay Need to show physician meets all requirements of position

23 Final application for Permanent Residence I-485 adjustment of status Consular processing Leibl & Kirkwood

24 Hypothetical #1 The Beverly Hills Hospital, a for-profit facility, is seeking an orthopedic surgeon. It is not in a medically underserved area and can probably find an American doctor, but really wants Dr. Dudley Mulroney, a physician from Canada who has been working for the last 18 months in Toronto after completing a highly prestigious fellowship on a J-1 visa in Boston. Dr. Mulroney is widely regarded as one of the more talented surgeons in his field. BHH is also interested in employing Dr. Mulroney s wife Celine, an RN who used to work in Boston when Dudley was in the fellowship program. Dr. Mulroney never took USMLE 3 before leaving the US, but did take the Canadian exam (LMCC) because he didn t think he was coming back to the US. Can BHH recruit Dr. Mulroney? Leibl & Kirkwood

25 Issues Raised Leibl & Kirkwood Non-immigrant visas E-2 H-1B (via Canadian loophole); USMLE; National renown O-1 Wife s role: RN immigration options Complying with 212(e) an as option

26 Hypothetical #2 Leibl & Kirkwood Dr. Sanjay Shah has approached you because he is very unhappy at his current employer in South Dakota. The employer is making him work ridiculous hours, is not respectful and is paying him considerably less than was promised in the contract Dr. Shah signed as part of his J-1 waiver which he got through the South Dakota state 30 waiver program. You have found a nice position in Colorado for him but Dr. Shah still has two years to go on his three year obligation in South Dakota. Can he switch employers?

27 Issues Raised Leibl & Kirkwood Criteria to Change: Must find another job in a shortage area (doesn t matter of prior position in flex slot) Must work the balance (or more) of the three years of service Must show extenuating circumstances The process: Regular H-1B application plus evidence showing above met What is USCIS likely to buy? Does the original agency sponsor need to support?

28 Questions & Comments Geoff Leibl or Joe Kirkwood Leibl & Kirkwood El Camino Real, Suite 350 San Diego, CA (858)

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