U.S. Immigration Laws and Procedures: 100 Important Questions and Answers for Medical Residency Programs

Transcription

1 U.S. Immigration Laws and Procedures: 100 Important Questions and Answers for Medical Residency Programs Presented by: Michael I. Sherman, Esq. The Sherman Law Group, P.C Hamilton Court, Suite 205 Farmington Hills, MI / (fax)

2 U.S. Immigration Laws and Procedures: 100 Important Questions and Answers for Medical Residency Programs General Topics 1. A prospective resident has advised us that he is a foreign citizen, but he attended a U.S. medical school. Will he need a U.S. visa in order to join our residency program? Answer: Yes. All foreign citizens must obtain and hold a U.S. visa in order to work in the United States, even if they attended medical school here. This visa could be in the form of a temporary work visa (H-1B, J-1) or a permanent visa (commonly known as a Green Card ). 2. We just interviewed an outstanding candidate that we would like to sign a contract with outside the match. She advised us that she will require an H-1B or J-1 visa. Can we obtain such a visa for her even though she will not be participating in the NRMP? Answer: visa. Yes. Participation in the NRMP is not a requirement in order to obtain a U.S. 3. What is the USCIS, and is it related to the INS? Answer: The USCIS or U.S. Citizenship and Immigration Services is the new government entity that adjudicates visa petitions and applications. The USCIS (also known briefly as the BCIS earlier this year) replaced the INS on March 1, In addition to the name change, the entity was shifted from the U.S. Department of Justice to the U.S. Department of Homeland Security. 4. What is the difference between the USCIS and the State Department? Answer: The USCIS adjudicates visa petitions and applications, while the State Department oversees the operations of the U.S. Embassies and Consulates around the world. The USCIS and the State Department do share information about visa holders and visa applicants, but they are separate entities. 5. Where are the four regional USCIS processing centers? 2

3 Answer: The USCIS has four primary processing centers, known as USCIS Service Centers: (1) St. Albans, Vermont, (2) Lincoln, Nebraska, (3) Mesquite, Texas, and (4) Laguna Niguel, California. Each service center adjudicates applications that fall within its geographical jurisdiction. 6. When a visa application is pending with one of the four regional USCIS Service Centers, is it possible for our institution or our attorney to call the USCIS and speak directly to the officer who is adjudicating the application? Answer: No. The USCIS has established a single central toll free number for inquiries, It is not possible to speak with officers who adjudicate petitions. The only exception to this rule is for applications filed via the USCIS s expedited Premium Processing system. For those applications, it is usually possible to communicate with the adjudicating officer by and telephone. 7. One of my new residents would like to file his H-1B petition in person at the Nebraska Service Center. Is it possible to do this, and if so, will this result in a quicker response from the USCIS? Answer: Yes, it is possible to file visa petitions and applications in person at the four regional processing centers. This will not result in a faster processing time. 8. Related to question 7, is it possible for the resident to travel to our local USCIS office to file and/or check on the status of his H-1B petition? Answer: No. The local USCIS offices do not have jurisdiction over H-1B or J-1 applications, and thus it is not possible to file those applications locally. The local offices are not able to provide any information as to the status of the H-1B or J-1 applications. 9. One of our new residents would like us to file his H-1B petition with a USCIS Service Center other than the one with jurisdiction over our state. Is this possible/legal? Answer: No. If an H-1B or other visa application is intentionally or mistakenly filed with an incorrect service center, that center will either transfer the application to the proper service center or will send it back to the petitioner. This transfer can take several weeks, thus causing a delay in processing. 10. What is the role of U.S. Embassies and Consulates with respect to H-1B and J-1 visas? 3

4 Answer: The U.S. Embassies and Consulates are responsible for reviewing applications for visa stamps. These stamps are multicolored stickers that are placed into the person s passport with an adhesive. Except for Canadian citizens, all foreign citizens must obtain such a stamp before being able to travel to the United States and apply for admission. For those individual applicants already in the United States in another visa category who are applying for H-1B or J-1 visa status, a stamp is not needed until he person makes his/her first trip outside the United States. 11. What is the difference between a U.S. Embassy and a U.S. Consulate? Answer: The U.S. Embassy is the official office of the U.S. Ambassador in each country. The Embassy is usually located in each country s capital city. Due to the large size of certain countries, the U.S. also maintains satellite offices in other large cities. These satellite offices are known as Consulates. All embassies and a majority of consulates handle visa stamp applications. 12. Our institution is a large city hospital, and we currently have ten foreign residents. Is there any limit to the number of foreign residents that we can have at any given time? Answer: No. The U.S. immigration laws and regulations do not limit the number of foreign residents that you may have at any one time. 13. If one of our residents changes his or her residential address, is the resident or the hospital required to notify anyone? Answer: Any person residing in the United States who is not a U.S. Citizen or Permanent Resident ( Green Card ) must notify the USCIS of any change of address in writing within 10 days of moving. This notification must be done on Form AR-11, which can be downloaded from the USCIS website, at It is the individual s responsibility to do so, not the hospital s. H-1B and J-1 Visa Questions 14. We would like to start the H-1B visa application process as soon as possible for a new resident who will be joining our program on July 1 st. How early can we start the process? Answer: The H-1B visa application process can be started six (6) months prior to the intended starting date of the residency. The U.S. Department of Labor (which handles a portion of the H-1B application) and the U.S. Citizenship and Immigration Services (formerly known as the INS) will not accept H-1B applications that are filed earlier than that. 4

5 15. We have a new resident or fellow who wants to prepare his own H-1B application. Should we let him do so? Answer: No. The H-1B application process is more complex than it looks. The process requires several strategic decisions and detailed knowledge of the pertinent regulations of the U.S. Department of Labor and the USCIS. 16. In order to obtain an H-1B or J-1 visa for a current or new resident or fellow, are we required to advertise the position? Answer: processes. No. Advertising is not required as part of the H-1B and J-1 visa application 17. What are the major differences between H-1B and J-1 visa status? Answer: Although both visas allow foreign medical graduates to participate in graduate medical education programs in the United States, there are significant differences between the two types of visas: a. Individuals who obtain a J-1 visa for purposes of obtaining graduate medical education in the United States are automatically subject to a requirement that they return to their home country for a period of two years after the conclusion of their training. It is possible to obtain a waiver of this requirement in certain circumstances that are discussed later. H-1B visas do not have this requirement. b. Applicants for a J-1 visa only need to have passed USMLE Steps 1 and 2, while Applicants for H-1B visas must have passed USMLE Steps 1, 2 and 3. c. J-1 visas are sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG) so that the individual can participate in a program of graduate medical education at a U.S. hospital, while H-1B visas are sponsored directly by the hospital that will employ the physician. d. H-1B visa holders can apply for a Green Card if they find a qualifying US job offer or meet other criteria. J-1 visa holders can start the Green Card application process in certain circumstances, but cannot finish the process until they have either spent two years in their home country or obtained a waiver of the foreign residency requirement. 5

6 18. Regarding the H-1B visa, our residency training program is three years long. Can we obtain a three-year H-1B visa for our new resident, or will he have to apply for a new visa each year? What about a program that is five years long? Answer: H-1B visa status is granted by the USCIS in increments of up to three years at a time. Therefore, one H-1B application can cover the entire three-year residency program. As to the five-year program, it will be possible (and necessary) to apply for an extension of H-1B visa status. This extension should be applied for during the final six months of the resident s initial period of H-1B visa status. Such renewals are usually granted without any problem, as long as the physician has been maintaining his visa status and has not violated his status. 19. Is it possible to obtain an H-1B or J-1 visa for residents/fellows in a specialty, or are the visas limited only to primary care physicians? Answer: H-1B and J-1 visas are not limited to primary care physicians. 20. We would like to obtain H-1B visa status for a Fellow. Is H-1B visa status available for fellows, or just for residents? Answer: H-1B visa status is available for residents, fellows and full physicians, assuming that certain requirements are met. These requirements usually include: USMLE Steps 1, 2 and 3, a valid ECFMG Certificate issued by the Educational Commission on Foreign Medical Graduates, and a valid state medical license. The licensure requirement does not apply to residents who will work in states that do not issue licenses to residents. 21. In the past, our institution has always required that our foreign residents obtain J-1 visa status. Can we now change this policy and offer H-1B visas to them? Answer: Yes. It is up to each institution to decide whether to offer residents H-1B and/or J-1 visas. It does not matter what the institution s prior policy was. 22. I know that our institution is responsible for signing H-1B visa applications. What about J-1 visa applications? Answer: The institution and the foreign physician are responsible for signing the initial J-1 visa application paperwork, known as Form MF-1. Once that form is submitted to the Educational Commission for Foreign Medical Graduates (ECFMG), it is the responsibility of the ECFMG to prepare and issue the J-1 visa sponsorship document, known as Form DS2019 (formerly known as Form IAP-66). 6

7 23. We have a new resident who will be starting on July 1 st. She will hold H-1B visa status. She would like to know whether her husband can use his H-4 (dependent) visa status in order to work in the United States. We also have a new J-1 visa holder who asked the same question regarding his wife, who holds J-2 (dependent) visa status. Can these spouses work? Answer: The U.S. immigration laws and regulations do not allow an H-4 visa holder to work in the United States. If he qualifies for an H-1B work visa in his own right and locates a qualifying U.S. job offer, then he can apply to change visa status from H-4 to H-1B. Once that is approved, he can work in the United States for the sponsoring employer. The J-2 visa holder, on the other hand, can apply to the USCIS for a work authorization card (known as an EAD Card). The J-2 must file an application and must show that her employment is not needed in order to support the family; she must show that the J-1 is supporting the family and that her employment will simply be a supplement. The USCIS has the discretion to issue an EAD card in these circumstances. The card is usually valid for one year, and annual renewals are possible during the person s J-2 visa status. 24. With reference to question 13, if one of our new residents who will start on July 1 st currently is in the United States as an H-4 dependent, will we need to apply for a change of visa status from H-4 to H-1B? Answer: United States. Yes. As mentioned above, an H-4 visa holder is not allowed to work in the 25. Can the H-4 spouse and children of one of our residents attend school while they are in the United States? What about the J-2 spouse and children of one of our J-1 residents? Answer: Yes. They can attend school. 26. We have some current residents who hold H-1B and J-1 visa status. In order to earn extra money, they would like to moonlight by performing some medical care duties outside the scope of their residency duties. In addition, some residents have been offered honoraria in return for giving lectures about certain drugs. Is this legal? Answer: No. The USCIS (then known as the INS) in 1994 issued a policy letter stating that individuals who hold H-1B visa status are only allowed to perform the job duties that are listed on the H-1B application. They are not permitted to perform any work outside those duties for pay, whether the pay comes from the current employer or from a different source. As to J-1 visas, the ECFMG issued its own policy memorandum ago clearly stating that moonlighting is not permitted. This memorandum replaced their old policy of reviewing individual requests for permission to moonlight on a case-by-case basis. 7

8 27. How do we obtain extensions/renewals of H-1B and J-1 visa status for our residents? Answer: In order to obtain an extension of a resident s H-1B visa status, your institution will need to file an H-1B extension of status petition with the USCIS. For the J-1 extension, your institution will need to file certain documents with the ECFMG, and that entity will then issue a new DS2019 form covering next year. 28. What is the normal limit (if any) of H-1B visa status? Are there any exceptions? Answer: H-1B visa status is normally limited to six years. After that point, a foreign worker is required to leave the United States for a period of one year before being eligible for a new six year period of H-1B visa status. The exception to this rule is for certain individuals who are in the Green Card application process, and whose initial Green Card application was filed at least one year earlier. Those individuals are eligible for additional H-1B visa status beyond the normal six-year limit. They can apply for and obtain individual years of H-1B visa status as necessary, until the Green Card process is complete. 29. What is the normal limit (if any) of J-1 visa status for residents and fellows? Are there any exceptions? Answer: The normal limit for J-1 visa status is seven years. In very rare instances it may be possible to obtain additional J-1 visa status. 30. Is it possible to use an H-1B approval for another physician? That is, can we use it for another resident or fellow if the resident/fellow listed on the approval notice leaves our residency program prior to completing it? Answer: No. Each H-1B visa approval is only valid for the named beneficiary. It is not possible for another person to utilize that approval. 31. Our institution currently employs a foreign physician as a medical researcher pursuant to H- 1B visa status. We would now like to offer him a spot in our incoming Internal Medicine residency program. Can we do this, and if so, is a new visa required? Answer: Yes, this is possible. In order for the physician to change jobs, a new H-1B visa petition will need to be prepared and filed with the USCIS. This can only be done, however, if the physician meets the requirements for a clinical H-1B, including USMLE 8

9 Steps 1, 2 and 3, ECFMG Certificate and a state medical license (in those states that license medical residents). 32. We have a physician who does not yet have USMLE Step 3, but we would like to sponsor her for an H-1B visa. Are the first two parts of the USMLE sufficient for purposes of an H- 1B application? Answer: for an H-1B. No. The physician must hold all three steps of the USMLE in order to qualify 33. One of our prospective new residents passed the FLEX Examination, parts 1 and 2. Is this sufficient for H-1B purposes, instead of the USMLE? Answer: Yes. Evidence of passing FLEX parts 1 and 2, plus evidence of the ECFMG Certificate and a state medical license, is sufficient for an H-1B petition. 34. We currently employ a foreign physician as a research fellow pursuant to J-1 visa status. Is it possible for him to modify his J-1 in order to switch categories from researcher to medical resident? Answer: No. It is usually not possible to switch J-1 categories. The reasoning is that such a change would mean that the individual would not fulfill the original purpose that he/she had when they entered the United States as a J-1 worker. 35. One of our incoming residents advised us that he can obtain H-1B visa status within 15 days after we file the H-1B petition with the USCIS. Is this accurate? Answer: Yes. The USCIS has a program known as Premium Processing. For a payment of $1, above the normal H-1B filing fee, the USCIS will process certain visa applications (including H-1B applications but not including J-1 applications) within 15 calendar days. The only exception is in situations where the USCIS needs to request more information in order to adjudicate the petition. In that case, the USCIS will take up to an additional 15 days after receiving the requested information or documents. 36. Are there any plans to expand the Premium Processing program to include J-1 visas? Answer: There are currently no proposals to expand the program to include J-1 visas. 9

10 37. What is the normal USCIS filing fee for an H-1B? Is there an additional filing fee for dependents? Answer: The current filing fee for all H-1B petitions is $ This is an increase from the prior filing fee of $ that was in effect until the end of April There is an additional filing fee of $1, for all applications that are filed as Premium Processing applications. 38. Although it is possible to apply for H-1B visa status in increments of three years, our institution has traditionally only applied for one year of H-1B visa status for each resident. Can we continue to do this, or are we required by law to apply for three years of H-1B visa status? Answer: Your institution has the discretion to decide on the length of the resident s H- 1B visa status. Nevertheless, most institutions do apply for a full three-year H-1B, since this will save the time and expense of applying for annual extensions of H-1B visa status each year. 39. If we do apply for a three-year period of H-1B visa status for our resident, does this mean that we must employ him for the full three years? What if his work is substandard? Answer: No. An H-1B approval is only valid for employment as long as the employer is willing to employ the foreign worker. The H-1B does not replace the personnel policies that your institution currently has. If, for any reason, the physician is terminated from employment, your institution should notify the USCIS in writing of this situation and ask that they cancel the resident s H-1B approval notice. This step is required by the applicable U.S. regulations. 40. We sponsored two residents for visas, one for an H-1B and the other for a J-1. Neither resident appeared for the start of the residency program. Do we need to notify the authorities? Answer: Yes. As to the H-1B, your institution should contact the USCIS in writing and ask that the H-1B visa approval notice be revoked immediately. As to the J-1, you must notify the ECFMG. 41. Our hospital has a non-accredited fellowship program. Will the ECFMG sponsor J-1 visas for foreign physicians to participate in this program? 10

11 Answer: No. The ECFMG will only sponsor J-1 visas for physicians who will participate in ACGME accredited programs. 42. Is there a good website for J-1 information? Answer: Yes. Please see This website is an excellent resource regarding J-1 visas. 43. Our institution has an excellent medical resident who is completing her final year of training. We would like to offer her a position as Chief Resident for the coming year. Is it possible for us to do this? She is on an H-1B visa. Answer: remaining. Yes, as long as she still has at least one year of eligibility for H-1B visa status 44. Same question as number 33, but she holds a J-1 visa. Answer: remaining. Yes, as long as she still has at least one year of eligibility for J-1 visa status 45. We have an excellent resident and would like to offer him a full time position with our institution as an attending physician when he completes his training on June 30 th. Can we do this? He holds H-1B visa status. Answer: Yes, as long as he is still eligible for additional H-1B visa status. 46. Same question as number 35, but he holds J-1 visa status. Answer: No. If he can obtain a waiver of the two-year requirement or if he can obtain O-1 visa status, then this may be possible. Otherwise, he will need to comply with the twoyear foreign residency requirement before you can hire him. 47. Are all H-1B visa applications subject to the annual limit of H-1B visas? Answer: No. Four types of H-1B applications are not subject to this annual limit of 65,000 H-1B visas: (1) petitions filed by organizations that are exempt from the H-1B cap, including certain non-profit organizations that are formally affiliated with an institution of higher education and others; (2) petitions to extend a person s current H-1B visa status; (3) petitions filed with the USCIS in order to transfer an H-1B worker from one company to another; and (4) concurrent petitions for H-1B visa status that are filed in order to permit the applicant to work for an additional employer. 11

12 48. Will the current limit of H-1B visa be increased? Answer: The old annual cap of 195,000 H-1B visas expired on September 30, The expiration of this law resulted in a return to the original statutory cap of 65,000 H-1B visas per year. 49. One of residents or fellows, with our approval, wishes to work part time as a medical researcher for another entity. Can he do so? If so, what steps are required? Answer: In order to work for another entity while still serving as a resident or fellow for your institution, the physician will need to have the additional employer file what is known as a concurrent H-1B visa petition with the USCIS. This can cover full or part time employment. It is not legal to perform such work for such an employer without applying for a concurrent H-1B. 50. We have offered a PGY II position to a resident who is currently completing her PGY I training year at a hospital in another state. Will she need to apply for and obtain a medical license for our state before we can file an H-1B visa petition for her, or can she simply use the medical license that she currently holds for the other state? Answer: She will need to obtain a medical license for your state before you can file the H-1B petition with the USCIS. It is not possible to use a license from another state, since that license will not allow her to practice medicine in your state. The only exception to this rule is for Veterans Administration hospitals in the United States, since those hospitals usually only require that the person hold a state medical license, even if it is a license for a different state. 51. What is SEVIS and is our institution required to participate in it? Answer: SEVIS or Student and Exchange Visitor Information System was established by the U.S. government in 2003 in order to increase the government s ability to track individuals who enter the United States in J-1, F-1 (student) and M-1 (vocational student) visa status. SEVIS is a database containing certain information about these individuals, including the type of visa that they hold, their course of study/training and information about the institution that sponsored their visas. Because only the actual visa sponsor is required to enter information into SEVIS, it is the ECFMG s responsibility to do so with respect to J-1 visa holders who are in the U.S. for medical training. The hospital is not required to utilize SEVIS for these individuals. 12

13 52. For many years, the J-1 visa sponsorship document issued to foreign medical graduates was known as Form IAP-66. Has this form been replaced recently? Answer: Yes. Form IAP-66 is now obsolete. A new form, Form DS2019, which is generated by the SEVIS system, has replaced it. This form is issued electronically based on the information that the visa sponsor has entered into the SEVIS system. Form DS2019 has the same general format as the IAP-66 and contains most of the same information. J-1 Visa Waivers/Two-Year Foreign Residency Requirement 53. What is the J-1 two-year foreign residency requirement? Answer: Certain J-1 visa holders are required by law to return to their country of citizenship or last permanent residence for a period of two years after the conclusion of their medical training in the United States before being eligible to obtain an H-1B work visa or Green Card (permanent visa). 54. Does this rule apply to all physicians who hold J-1 visa status? Answer: No. This rule automatically applies to all foreign physicians who obtain graduate medical education in the U.S. on a J-1 visa. This rule also applies to some physicians who are in the United States in some other J-1 visa categories, such as researchers and others. With respect to those other categories, the physician will be subject to the requirement if either: (1) his field is listed on the Exchange Visitor Skills List for his home country, and/or (2) his stay in the United States was paid for using funds from his home government or from the U.S. government. 55. If a physician is on a J-1 visa for purposes of graduate medical education, can she obtain a J- 1 waiver by having her country s Embassy in Washington, D.C. forward a letter of no objection to the U.S. Department of State? Answer: No. A No objection waiver can only be used by individuals who are subject to the J-1 two-year foreign residency rule because either their skill is listed on the Exchange Visitor Skills List, or they received government funds to help pay for their stay in the United States. Medical residents/fellows can never use this type of J-1 waiver. 13

14 56. What types of J-1 waivers are specifically available for foreign physicians who hold J-1 visa status as residents or fellows? Answer: The following J-1 waivers are available: a. Various U.S. states that have Conrad 30 J-1 Waiver Programs; b. The Appalachian Regional Commission; c. The Delta Regional Authority; d. The U.S. Department of Health and Human Services; e. The Veterans Administration; and f. Exceptional hardship waivers via the U.S. Department of State. 57. Do all states offer a Conrad 30 program? Answer: Many states have Conrad 30 programs, and they have information about their programs online. You may want to use or another web search engine for information. In the alternative, the prospective applicant should contact the state health department for further information. 58. What are the requirements for these waiver programs? Answer: Each program has its own specific requirements. In general (except for the VA), the J-1 waiver must be based on a full time primary care or psychiatric position in a geographical area that has been deemed medically underserved. Normally, the physician must agree to work in that area for three years. 59. For a Conrad 30 waiver or an HHS waiver, is it possible for an existing U.S. medical practice to open a new practice site in a medical shortage area and then file a J-1 waiver application on behalf of a certain physician? Answer: Some J-1 waiver programs allow this, while others only allow J-1 waivers for medical offices that are already in existence. Some waiver programs will go so far as to require submission of a copy of a telephone book listing for a practice as evidence that the practice already exists. 60. Are there any other types of waivers that apply to physicians? Answer: Yes. The U.S. immigration laws do provide for J-1 waivers based on the extreme hardship that would result to the physician s U.S. citizen spouse or child(ren) if he is required to return to his home country. Hardships can include: (1) danger to the family members due to cultural differences, (2) inability of the medical services in the home country 14

15 to adequately treat a U.S. citizen spouse or child who has a serious illness. Each hardship waiver application is adjudicated by both the State Department and by the USCIS. 61. Can specialists apply for a J-1 waiver? Answer: Some waiver programs only accept applications from primary care physicians and psychiatrists, while others accept applications from primary care and specialist physicians. 62. What happens when the J-1 waiver application is approved? Answer: It will then be necessary in most cases for the employer to apply for H-1B visa status for the physician so that he can commence work. 63. If a physician does not qualify for a J-1 waiver, or if her J-1 waiver application is not approved, can she spend two years in Canada or another country other than her original home country? What if she became a Canadian citizen while in the United States as a J-1? Answer: No. The J-1 visa holder must return to her home country or her country of last permanent residence as listed on the DS2019 form. Thus, she cannot stay in Canada, since her Canadian citizenship was obtained after her initial entry as a J-1 visa holder. 64. What will happen if the J-1 is not aware of the legal requirements mentioned in question 46 and he spends two years in Canada before trying to re-enter the United States? Answer: He and his family will be denied U.S. H-1B and H-4 visas or Green Cards for failure to meet the J-1 foreign residency requirement until they actually reside for two years in the home country. 65. What about an O-1? Can a physician subject to the J-1 two-year requirement obtain an O-1 visa and work in the United States without fulfilling or obtaining a waiver of the two-year requirement? Answer: Yes. The U.S. immigration laws and regulations allow an individual who is subject to the J-1 two-year foreign residency rule to apply for and obtain an O-1 visa. Please note, though, that it is often difficult to obtain an O-1 visa, since the visa requires a strong showing that the physician has extraordinary ability in his or her field of medicine. Furthermore, the O-1 allows the physician to work in the United States, but it does not 15

16 remove the two-year requirement. At some point in the future, the physician will have to comply with the requirement or obtain a waiver. 66. Can a Canadian citizen who is subject to the J-1 visa two-year foreign residency requirement obtain a TN visa and use it to serve in a clinical position in the United States? Answer: No. Although a person can obtain a TN visa even if he/she is still subject to the J-1 visa two-year requirement if he/she is a Canadian citizen, the TN visa for physicians only permits the bearer to perform teaching and/or research duties in the US. The TN visa cannot be used for clinical positions. 67. If a person is subject to the J-1 requirement and has not fulfilled it or obtained a waiver, can he/she attend medical meetings in the United States and/or take a personal vacation in the U.S.? Answer: Yes. The J-1 two-year requirement does not prohibit the physician from making short visits to the United States as a visitor for business or pleasure. However, any time spent in the United States in this capacity does not count toward the fulfillment of the two-year foreign residency requirement. U.S. Permanent Resident Status/NIW Cases ( Green Cards ) 68. What is an NIW Green Card? Answer: An NIW Green Card is formally known as a National Interest Waiver Green Card. This is a permanent visa that is available to primary care physicians who agree to work in designated medical shortage areas in the United States for a period of five years. 69. What are some of the benefits of the NIW Green Card as compared to the standard Green Card process? Answer: The NIW Green Card allows the applicant to bypass the Alien Labor Certification process, which normally involves advertising and some uncertainty as to the final outcome. In contrast, the NIW Green Card bypasses this lengthy process in return for the physician s promise to work in the underserved area for at least five years. The other main benefit is that the physician and his family can file Adjustment of Status applications with the NIW application. This allows the spouse to apply for a temporary work authorization card. In contrast, the regular process does not permit the spouse to apply for such a card until the start of the third step of the process. 16

17 70. How does the government confirm that the physician has fulfilled the five-year requirement? Answer: The USCIS contacts the physician periodically during the five-year period and asks for evidence that the physician has been working in the medical shortage area. This evidence can include copies of the physician s Form W-2, tax returns, letter from the employer and/or other evidence. 71. Is it true that a federal or state department of health must provide written support for each NIW application? Answer: Yes. Each NIW application must be accompanied by a letter from a federal or state health agency describing the physician s credentials and the impact that his/her work will have on the medical shortage area. The letter must state a formal opinion that this work will benefit the national interest of providing U.S. citizens in shortage areas with better access to primary medical care or to mental health care. Other Types of Green Cards 72. What are some other ways that a physician can obtain a Green Card, other than the NIW type of Green Card? Answer: There are several ways to obtain a Green Card, although not everyone qualifies for all of them. Below are some of the primary methods: a. Alien Labor Certification, which is the traditional, standard employment based avenue for obtaining a Green Card. This requires that the job be advertised, among other requirements. b. Marriage to a U.S. citizen. c. Certain categories of Green Card applications that do not require employer sponsorship, such as Alien of Extraordinary Ability or Outstanding Professor or Researcher. d. Diversity Visa Program, an annual program that is also known as the Green Card lottery. 17

18 73. My resident s spouse is a registered nurse. Will this help the resident obtain a Green Card? Will the process be faster than a typical Green Card application where Alien Labor Certification is required? Answer: Yes. The U.S. immigration laws allow registered nurses to apply for a U.S. Green Card via an expedited process that bypasses the lengthy Alien Labor Certification process. The basis for this special process is the government s finding that there is currently a shortage of registered nurses in the United States. This process will help the physician spouse, since he/she is eligible to obtain a Green Card with the principal alien (the registered nurse). A U.S. employer must sponsor this Green Card process. 74. A resident in our program is on a J-1 visa and just married a U.S. citizen. Can he now apply for a Green Card based on this marriage? Answer: No. Because he is still subject to the J-1 visa two-year foreign residency requirement, he is not permitted to apply for a Green Card at this time. After he has either fulfilled the requirement or obtained a waiver, he is usually eligible to file for such a Green Card. This is not true, however, if he obtained his waiver through a state or federal agency in order to provide medical care. In such a case, he would first need to serve three years as an H-1B worker before being eligible to apply for a Green Card. 75. What is the difference between a Green Card, a Permanent Resident Card, an Alien Resident Card and U.S. Permanent Resident status? Answer: They are all different ways of describing the same immigration status. U.S. Permanent Resident status denotes a person s right to reside and work in the United States on a permanent basis. The following are different names for the plastic card that such individuals receive as evidence of their status: Green Card, Permanent Resident Card and Alien Resident Card. The current official name of the card is Permanent Resident Card. The name Green Card was used by the public several years ago, when the cards were actually green in color. 76. If a resident or fellow holds a valid Green Card, does he or she also need an H-1B or J-1 visa in order to work for our institution? Answer: No. A U.S. Permanent Resident has the right to reside and work in the United States on a permanent basis. Therefore, there is no reason for these individuals to apply for an H-1B or J-1 temporary work visa. 18

19 Form I-9/Employment Eligibility Verification 77. What is Form I-9? Answer: Form I-9 is used by all U.S. employers to verify the employment eligibility of new hires. Since November 1986, all U.S. employers must complete an I-9 for their new hires. Failure to do so can result in civil and criminal penalties. 78. Should we complete an I-9 only for foreign workers, or for all workers (including U.S. citizens)? Answer: The applicable U.S. immigration laws state that U.S. employer must complete an I-9 for all new hires, and not only for those workers who hold a U.S. work visa. 79. Part of the Form I-9 asks the worker to present documents as evidence of his/her eligibility to work in the United States. As an employer, can we tell our new employees which documents to bring or which documents we will accept? Answer: No. The physician can present any of the documents listed on the I-9 form document list. It is illegal for a U.S. employer to specify which documents the worker should or must present. As long as the documents presented do satisfy the I-9 form requirements, then this is all that is required. 80. Is our institution required to verify that each document is genuine, or can we accept them if they look like they are valid? Do we need to act like Sherlock Holmes? Answer: The applicable immigration laws do not require U.S. employers to verify the authenticity of documents. That is, the employer may accept them as genuine and has no duty to investigate their validity. However, an employer may not accept a document that has clearly been altered or defaced, and may not, for instance accept a U.S. Social Security Card that has been laminated. 81. Can we accept photocopies of documents, such as driver s licenses, EAD cards and social security cards, or must we actually see the originals? 19

20 Answer: The applicable U.S. Immigration laws and regulations require that U.S. employers actually see the original documents. The employer can make copies of them if it wishes, but the employer must see the originals in order to complete the I-9 form. 82. When completing Form I-9 for some new residents, can our institution make photocopies of the identity and/or work authorization documents presented to us by our foreign residents only? Answer: Your institution should develop and implement a single policy covering all I-9 forms. It is not legal to have one policy for U.S. citizens and another policy for other individuals. 83. When must our institution update or revalidate each employee s I-9 form? Answer: It is only necessary to update a person s I-9 form if the work authorization document that was presented in support of the I-9 form, such as an H-1B visa, bears an expiration date. In that case, the person must present either a new H-1B or some other legal evidence of work authorization on or before the H-1B expiration date in order to continue working in the United States. 84. One of our residents, who had been working pursuant to H-1B visa status, just recently became a U.S. Permanent Resident. Do we need to update his I-9 form? Answer: status. Yes. You should update his I-9 form to indicate this change in immigration Miscellaneous Matters 85. When one of our future residents entered the United States recently as a visitor, the Immigration Officer at the airport wrote the following on the back of his I-94 card without any explanation: No COS, No EOS, No AOS. What does this mean? Answer: These abbreviations mean: (1) No Change of Status; (2) No Extension of Status; and (3) No Adjustment of Status. These notations are problematic if the individual intended to enter the United States as a visitor and later change visa status in the United States to an H-1B, J-1 or other status or to apply for a Green Card. These notations prevent each of these actions, and they actually require that the bearer return to his or her home country at the conclusion of the period of time listed on the front of the I-94 card. 86. What is an I-94 card? 20

21 Answer: The I-94 card is a small white card that each arriving or returning foreign national is given at the time he/she enters or re-enters the United States. In addition to bearing a unique card number, each I-94 also contains a stamp and/or notations as to: (1) where the person entered the United States; (2) the date of entry; (3) type of visa status, such as H-1B; (4) expiration date of that status; (5) the person s name, date of birth and country of citizenship. The only times that an arriving or returning alien does not receive an I-94 card are: (1) Canadian citizens who hold I-94 cards that are valid for multiple entries, and (2) Canadian citizens who seek to enter the United States as temporary visitors. 87. What is an EAD Card, and can a physician use it instead of a work visa? Answer: An EAD card (officially known as an Employment Authorization Document) is a small plastic card issued by the USCIS to certain foreign individuals in the United States, such as individuals who are at a certain point in the Green Card application process. The card allows the bearer to work in the United States for the duration listed on the card, and that employment may or may not be restricted to a certain employer and/or type of job. As long as it is not limited to a specific employer, the individual can use it in order to commence or continue working for your institution. The EAD card can be renewed annually as long as the person still qualifies for it. 88. A new resident advised us that he has applied for an EAD card and qualifies for it, but has not yet received it. This will be his first EAD card, and in the meantime, he would like to start work for our institution based solely on the notice. Is this okay? Answer: No. 89. I understand that the USCIS maintains a toll free information line ( ), and that the officers on this line can provide me with useful information on a variety of immigration matters and visas. Is this correct? Answer: Great caution should be taken in using the USCIS s toll free line. While the individuals who answer the line can provide some useful information (such as the address of a local USCIS office or the filing fee for a particular form), those individuals often give incorrect, misleading or insufficient answers. Many of the individuals appear to be referring to manuals or other written materials in order to answer questions, rather than actual immigration law knowledge. 21

22 90. What about the USCIS website ( Does that site provide accurate and complete information on visa law, regulations and procedures? Will the website tell me whether a person qualifies for a certain visa? Answer: The USCIS website does have some useful information. This includes filing fees, downloadable immigration forms, press releases and the like. It also provides access to the U.S. immigration laws and regulations. Nevertheless, the website only provides certain, limited information about visas. While it provides quite a bit of information about K visas, for example, it provides insufficient information about other visas, such as H-1B visas. Therefore, this website can be consulted for general information, but should not be relied upon for full information about all aspects of a certain visa. 91. I understand that the USCIS is gradually implementing an e-filing system for some immigration applications. What is the status of this effort? Answer: To date, the USCIS has set up a program where two forms can be filed online. These forms include the I-90/Application to Replace Permanent Resident Card and the I- 765/Application for Employment Authorization. Over time, the USCIS will add additional forms to this list, based on a government mandate that they expand their e-filing system to include as many forms and applications as possible. While the e-filing system has worked well to date, there are some drawbacks. Because the system is not fully automated, it is necessary for the applicant to call the USCIS toll free line after e-filing an application in order to schedule an appointment at a USCIS office for fingerprinting and photographing. The applicant must then appear for that appointment. 92. Some foreign medical graduates who wish to interview for positions with our residency program have contacted our organization. Since they are overseas, what is the best visa for them to obtain in order to attend the interviews? Answer: The best visa would be a B-1 or B-2 visitor visa. The individual should clearly state to the U.S. Embassy or Consulate officer the purpose of the trip, and should present letters confirming the interview appointments. OUR LAW FIRM 93. Your law firm is not located in our state. Can you still assist us with immigration matters? Answer: Yes. Because federal law rather than individual state laws controls immigration matters, we can assist clients in all 50 states. Licensure in any one U.S. state, 22

23 such as Michigan, allows us to help clients all over the United States. Currently, we have clients in about 20 states. 94. Do you have a lot of experience with medical immigration? Answer: Our law firm specializes in medical immigration. Mr. Sherman has 10 years of experience in the field representing hospitals, medical practices, physicians and other health care workers. 95. While our organization does not have any foreign physicians working here now, we do have immigration questions that arise from time to time. Can we call you for advice on these matters when they come up? Answer: Yes, we are happy to provide immigration consultation services either in person, via telephone or via regarding immigration matters. 96. Do you offer free consultations? Answer: No. Because a consultation involves having me review a particular immigration matter and then give you my professional opinion about that matter, I am not able to do so without charging for my work. 97. Our institution may wish to utilize your services for some immigration matters and visa applications. Can we contact you initially to discuss the nature of these matters and to see whether you can assist us? Answer: Yes. Please feel free to call me anytime with this type of question. There is no charge for this type of call, since it may result in legal work for my firm. 98. Are you available for presentations to our department leadership and/or our human resources department and/or our foreign medical graduates? Answer: Yes, I make many immigration presentations throughout the year. Depending on the immigration matters that you and your colleagues are interested, I can tailor the content of the presentation to address those matters. 99. Our institution does not need your services at this time, but one of my colleagues at another institution or in a private practice may need your services. Can I give him your 23

24 name and contact information? Answer: We are always happy to accept such referrals. It is a privilege to have people refer their friends and colleagues to our office. Most of our current clients were actually referred to us by other clients. 100.Does your law firm have a webpage? Answer: Yes. Our firm s website is located at Please feel free to visit our site for additional information. 24