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May/June 2002

This newsletter, edited by Theodore Sherman, Esq., and published strictly in an electronic format, contains information pertinent to immigration issues for physicians and scientists who desire to reside in the U.S. on a temporary or permanent basis.

Readers who wish to obtain more information on topics are encouraged to forward your queries to us by completing the online consultation form on our website. We will respond to your particular queries as soon as possible.

Current Immigration Climate in U.S.: A number of changes have occurred in U.S. immigration regulations during the past few weeks, with much more to come in the near future. The changes are aimed at reducing the stay of visitors to his country (with the hopes that the visitors will return home upon the conclusion of their shortened stay), making it increasingly difficult to obtain student (F1) visas, and otherwise trying to prevent 'undesirable' people from entering and/or remaining in the U.S. Even the USDA got into the game in February 2002, ceasing their sponsorship of J1 waivers for foreign physicians claiming that there was no way they could control the security 'risks' involved. FMGs have contributed greatly and continue to contribute significantly to the U.S. medical community, if you ask us, and certainly do not present security risks.

Table of Contents
Topics for Physicians / Scientists

1.1 J-1 Waiver Issues for Physicians

As indicated in our earlier newsletter, on February 28, 2002, the USDA canceled sponsorship of J1 physicians based on employment in underserved areas. This cancellation was without warning, and the USDA promptly halted processing on 86 pending cases for physicians to work in underserved areas throughout the U.S., and returned the cases to the attorney or health clinic without action.

Our office was affected by this action, as we had a client who had completed all requirements for USDA sponsorship, and whose application was merely awaiting signature from the USDA chief, when all processing was halted.

As you can imagine, there was great uproar among rural health clinics, immigration lawyers, and foreign physicians about the USDA cancellation. Evidence was provided that over 30% of rural counties in the U.S. have been designated as shortage areas by the federal government and that in more than 160 counties in the U.S. there was not a single primary care physician in the entire county. Rural health care will certainly suffer by the USDA cancellation, as was clearly shown. Even the Wall Street Journal published a front-page story about the town of Ely, Nevada, and how that town will go without a doctor due to the USDA action.

From February 27th to just recently, nothing had happened. The USDA held firm, and letters from Congressmen/Senators had no effect. Then, all of a sudden, the USDA announced that they will now adjudicate the 86 cases that were pending when the cancellation was announced, but will then not sponsor any additional physician. However, this is of little help, as all cases had already been returned and now each case would need to be re-submitted. Moreover, due to time delays in USDA processing, there is no guarantee that the USDA would process the case in time for the physician to begin employment typically in July 2002.

The USDA program appears to be dead, with little chance for revival at this point. However, if there continues to be enough outcry over the shortage of physicians in rural USA, perhaps the program can be resurrected.

There is talk of expanding the Conrad State 20 program, perhaps even doubling the program to 40 doctors per State. For those readers unaware of this program, most of the U.S. States have programs where they can sponsor 20 physicians for J1 waivers through working in underserved areas. The State programs have usually been oversubscribed, with many States having 100 or more applications for the 20 spots. Increasing the number of spots available will be of great help.

1.2 Changes to the B1 (Business) and B2 (Tourist) visas

In response to the events of September 11th and continuing terrorist threats in the U.S., the INS has severely curtailed the flexibilities inherent in the B1/B2 visas. Prior to the newly enacted immigration regulations, visitors to the U.S. were routinely granted a six-month period of stay when they entered the U.S. This period of stay could often be extended by another six-months by merely filing an application to extend stay with the INS. Additionally, individuals on B1/B2 visas could often change to F1 (student) status upon finding a school in which they desired to attend. Furthermore, changing from B1/B2 visa to H-1B visa upon securing employment was often not a problem.

With the newly enacted immigration regulations, B1/B2 visa holders are limited to 30-day admission, with extension of stay possible only upon demonstration of some compelling health or business reason. Furthermore, the maximum stay permitted was reduced from one-year to six months. In another big change, individuals entering the U.S. on a B1/B2 visa are no longer permitted to change their status to F1 (student) status even upon gaining admission to a U.S. college. Instead, the B1/B2 visa holder would now have to return home to apply for the F1 visa at the U.S. Embassy in their home country. This is often problematic, as many U.S. Embassies frown upon F1 visa applications and often deny such applications for a multitude of reasons. However, the INS has stated that a change from B1/B2 to F1 (Student) is possible if the individual informs the officer at the border when entering that the person is considering attending school, so that a notation can be made on the I-94 card. We shall see how this all plays out.

For foreign physicians seeking entry into the U.S. for purposes such as taking USMLE Step III or the CSA exam, or for attending residency interviews, careful preparation is required so that documentation can be presented to the INS officer at the border to show that a longer than 30-day stay is required. The INS officer then has discretion in issuing this longer stay.

1.3 EB1 - Physicians/Scientists of Extraordinary Ability

It is possible to apply for the Green Card without a job offer in the U.S. so long as the physician/scientist can demonstrate extraordinary skills and abilities in the field. This option has become increasingly useful lately for physicians living abroad, who would like to move to the U.S. but do not have job offers or U.S. licensure. Many of these individuals prefer to move to the U.S. first, and then either search for a position or begin preparations for becoming licensed in the U.S. This category is also useful for physicians already in the U.S. in H-1B, J, O, or B status.

To obtain approval in the EB1 (Alien of Extraordinary Ability) category, the physician/scientist must show that he/she is indeed one of the top in his/her field, and that he/she has a track record of exceptional accomplishments.

We have found that physicians/scientists having a number of published articles, abstracts, and citations to their work by others have a reasonably good chance for approval in this category. If the physician/scientist has a patent or has won an international prize, the likelihood of approval is quite high.

1.4 EB2 - National Interest Waivers for Physicians unrelated to employment

Similar to the EB1 category, physicians/scientists are able to apply for the Green Card through self-petition (no U.S. job offer necessary) if he/she can show that his/her immigration is in the 'U.S. national interest.' With individuals having job offers in underserved areas, national interest is presumed. Without a job offer, though, it is still certainly possible to apply and obtain approval in this category. To have a reasonably good chance of approval, the physician/scientist would need to show that his/her permanent presence in the U.S. would improve the state of knowledge in a particular medical or scientific field. Such as a showing can often be made by presenting reference letters from experts in the field who can attest to the individual's background and expertise. Likewise, having a number of published articles and a strong academic background is helpful as well.