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July 1, 2003

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. Also, please don't hesitate to contact the author directly if you wish, as I do attempt to answer all emails personally within just a few days of my receipt.

Current Immigration Climate in U.S.: Very difficult, with immigration processing delays increasing substantially in nearly every US immigration category due to increased scrutiny. It is now not unusual for Green Card processing to require 3-4 years for completion.

Table of Contents
Topics for Physicians / Scientists

1.1 HHS J-1 Waivers become a reality, but not without unfortunate limitations

As of June 12, 2003, the Department of Health and Human Services (HHS) has begun accepting applications for waiver of the two-year home residency requirement of the J1 visa for physicians who agree to practice clinical primary care medicine in shortage areas for a period of at least three years. Previously, HHS had only accepted applications from physicians involved in medical research of high national importance. This is particularly good news for physicians who need to seek a waiver of the home residency requirement of his/her J1 visa, and who did not or were not able to apply for a Conrad State 30 waiver. Each U.S. State is only allowed 30 Conrad Waivers, and many of the States have been receiving 60-100 Conrad 30 applications each year - hence, there are a number of physicians who can benefit from the HHS waiver program, which does not have any number limitations. The HHS program effectively replaces the USDA waiver program, which was canceled more than one year ago.

The requirements to qualify for an HHS waiver are very similar to that of the Conrad 30 programs in each U.S. State - namely, the physician must practice primary care medicine in a designated underserved area for at least three years (for detailed requirements, visit the HHS website at http://www.globalhealth.gov/exchangevisitor.shtml

There are a few unfortunate requirements of the HHS waiver program for clinical primary care physicians, which could result in the exclusion of many physicians on J1 visa currently, as follows:

(a) the HHS program requires that the physician have completed his residency training prior to the submission of an application for J1 waiver; and

(b) the HHS program requires that the physician have completed his residency training no more than 12 months prior to the submission of the application for J1 waiver, with some exceptions for applications submitted prior to October 1, 2003.

These requirements make it nearly impossible for physicians just completing their medical residency to apply for HHS waivers and remain in valid immigration status, since the J1 visa most often expires upon the conclusion of residency training. Therefore, physicians will need to attempt to take all steps possible to extend the J1 (for Board exams, etc.) so that they can remain in valid immigration status during the pendency of the HHS waiver application. In addition, physicians previously on J1 visas who currently hold O1 visas, would be precluded from pursuing the HHS waiver if they had completed their residency more than 12 months prior.

* Up until October 1, 2003, however, the HHS will accept waiver applications from physicians who completed their training more than 12 months ago - hence, physicians in this situation should consider pursuing the HHS waiver without delay.

We believe that the HHS program may indeed be modified in the future to remove some of the limitations as set forth above, since in its current format, the program is not very useful for medical residents just finishing their residencies.

Please contact us for further up-to-date information on the HHS J1 waiver program.

1.2 The O-1 Visa - only for Nobel Prize Winners?

The O-1 Visa is a non-immigrant visa that allows certain individuals, with 'extraordinary ability' to work temporarily in the United States. In years past, the O-1 Visa was typically available to physicians and scientists for a multitude of positions such as Medical Fellow, Research Scientist/Physician, Clinical Physician, etc. so long as the individual had a CV that included the authorship of scholarly articles, prizes/awards, etc. Moreover, for J1 physicians who had not yet secured a waiver, the O-1 visa often was the only visa they could obtain to allow them to continue to work in the U.S. Hence, the O-1 visa has been very useful to many of our clients.

Beginning in January 2003 and extending to date, the USCIS has started to take a hard-line approach to O-1 visa applications, and have lately been refusing 95% of all such applications, making the O-1 visa one of the most difficult to obtain. Even with multiple scholarly articles, presentations, editorial board memberships, etc., the USCIS seems to now be requiring substantial independent/objective documentation evidencing that the applicant is indeed one of the top few in his/her particular field, i.e. Nobel Prize Winners.

Until further notice, we at MDgreencard.com do not recommend that our readers/clients base their future in the U.S. On securing an O-1 visa (or even obtaining O-1 visa renewal) though the USCIS could again ease up their restrictions on this visa category at any time.

Please contact us with any questions or concerns.

1.3 Delays at the U.S. State Department - an increasing problem

The U.S. State Department has continued to increase its scrutiny on all immigration cases encountered by the Agency, including J1 waivers and revalidation of visas. Lately, the U.S. State Department has been taking 3-6 months to recommend approval of a J1 waiver , even after the State Health Agency or other governmental agency has issued its favorable recommendation (the State Dept. had in the past taken only 2-3 weeks). This has increasingly caused hardship for some of our physician clients, as many face J1 visa expirations at the end of June, and who were in need of J1 waiver approval, to allow them to file for and obtain H1B visas. * Please also note that once the U.S. State Dept. recommends approval, the case still requires USCIS final approval, which could take anywhere from 1 week to 3 months as well. From beginning to end, some waiver cases required up to 12 months to process this past year.

In response to the continued delays at the U.S. State Department, physicians/scientists are encouraged to apply as early as possible for the J1 waiver prior to their visa expiration. Some U.S. States, such as Michigan, now accept Conrad 30 applications up to 16 months prior to the proposed start date of work - hence physicians in their second year of residency training are now able to have these applications prepared and filed to provide for additional time needed for the U.S. State Department to carefully review the person's background and issue their recommendation for approval.

In view of the above, physicians/scientists on J1 visas are STRONGLY encouraged to search for suitable positions.

Due to the complexities of the process involved in securing E visa approval, please contact me by email or phone so that I may determine if your situation warrants E visa consideration.

A common question asked of us by many of our clients abroad is about obtaining the Green Card through sponsorship from relatives who are currently living in the U.S. The U.S. still has a very generous family sponsorship program which provides for the granting of U.S. permanent residency for thousands of individuals living throughout the world based merely on sponsorship by a family member who is either a U.S. citizen or permanent residence. The rules are as follows:

To be eligible for lawful permanent residence based on a family relationship you must meet the following criteria:

• You must have a relative who is a United States citizen or a lawful permanent resident of the United States who can provide documentation proving their status and is willing to sponsor you for lawful permanent residency by filing the I-130, Petition for Alien Relative.
• Your relative must prove they can support you by providing documentation that their income is 125% above the mandated poverty line for their family, including you and all other sponsored family members.
• If your relative is a US Citizen and they can legally prove you share one of the following relationships, you may be eligible for lawful permanent residency, please see below for preference category information.
  o Husband or wife;
  o child under 21 years old;
  o Unmarried son or daughter over 21;
  o Married son or daughter of any age;
  o Brother or sister if you are at least 21 years old; or
  o Parents if you are at least 21 years old.
  
• If your relative is a lawful permanent resident and they can legally prove you share one of the following relationships, you may be eligible for lawful permanent residence:
  o Husband or wife; or
  o Unmarried son or daughter of any age.

Family sponsored immigration is often used as a back-up for employer sponsored immigration for physicians and scientists due to the sometimes long delays inherent in the family sponsored categories. Yet, even with the delays, family sponsored immigration is worthy of exploration for those individuals with the qualifying relationships. For further information on the family immigration categories, and approximately timelines for Green Card issuance, please see the official US State Dept. bulletin at http://www.immigration.gov/graphics/services/residency/family.htm

Prior to just a few years ago, obtaining approval of a hardship waiver for a J1 physician or scientist was extremely rare - these cases were often denied as a matter of course by the U.S. State Department and USCIS. Over the past few years, our office has become very successful in obtaining hardship waiver approvals for J1 visa holders from countries where U.S. travel warnings exist (Pakistan, Lebanon, etc.) as well as countries with continued high-level terrorist and anti-American activities (Egypt, Ethiopia, etc.). We have also noticed increasing rate of approvals for health reasons, where forcing the individual to return home with his/her family would potentially have devastating health consequences for the physician/scientist of his family.

Our latest hardship waiver approval was obtained for a Yemeni Scholar, with Type 1 Diabetes. Married to another Yemeni, with one American born child, and living in the U.S. On a J1 visa, we successfully argued that forcing our client and his family to return to Yemen for the two-year period would cause exceptional hardship for the following reasons: (a) Yemen is a dangerous place for Americans (and Yemeni people) due to the high rate of lawlessness and terrorism; and (b) our client's disease is not properly treatable in Yemen (no facilities or treatments available for diabetics in Yemen).

We recommend that you consult our staff concerning your likelihood of obtaining J1 waiver based on exceptional hardship if you have a U.S. citizen spouse or American born child.

Why Isn't the Green Card Green?

Why Isn't the Green Card Green?

What we know as a "green card" came in a variety of different colors at different times in its history. We still refer to them as "green cards" for the same reason dismissal notices are called "pink slips," sensationalized news is called "yellow journalism," and intended distractions are called "red herrings." In each case, an idea was originally associated with an actual item of the respective color. A Lawful Permanent Resident (LPR) alien living in the United States may carry a card that is not green, but refers to it as a "green card." The alien does so because the card bestows benefits, and those benefits came into being at a time when the card was actually green.

Historical Background

The green card is formally known as the Alien Registration Receipt Card, Form I-151 or I-551. The first receipt cards were Form AR-3 (printed on white paper), and were the product of the Alien Registration Act of 1940. Designed as a national defense measure, the Act required all aliens (non-U.S. citizens) within the United States to register with the U.S. Government. They registered at Post Offices, and their registration forms were forwarded to the Immigration and Naturalization Service (INS) for processing. After processing, a receipt card (Form AR-3) was mailed to each registrant as proof of their compliance with the law. The Alien Registration Act, however, did not discriminate between legal and illegal alien residents. All were registered, and all received AR-3's in return.

As World War II ended and large-scale immigration to the United States resumed, alien registration ceased to take place at Post Offices and became part of regular immigration procedure. Aliens registered upon entry at the port, and the INS issued different documents to different aliens to serve as their Alien Registration Receipt Cards. Which document an alien received depended on his or her admission status. For example, visitors received an I-94c, temporary foreign laborers received an I-100a, and permanent residents received the I-151. This method not only reduced the number of forms handled by the INS, but helped to identify the immigration status of each alien. Thus the small, green, I-151 had immediate value in identifying its holder as a LPR, entitled to live and work indefinitely in the United States. As early as 1947, LPR's protested delays in processing their I-151's, complaining that employers would not hire them until they could prove their permanent resident status.

Following passage of the Internal Security Act of 1950, new regulations issued by the INS rendered Alien Registration Receipt Card Form I-151 even more valuable. As noted above, the AR-3 Alien Registration Receipt Card (issued primarily in the early 1940's) bore no relation to an alien's legal or illegal status. Effective April 17, 1951, regulations allowed those holding AR-3 cards to have them replaced with a new Form I-151 (the green card). Just as I-151's were only issued to Lawful Permanent Residents entering through ports, only aliens with legal status could have their AR-3 replaced with an I-151. Aliens who applied for replacement cards but could not prove their legal admission into the United States, and for whom the INS had no record of legal admission, did not qualify for LPR status and might even be subject to prosecution for violation of U.S. immigration laws.

Valuable Documents

By 1951, then, the green Alien Registration Receipt Card Form I-151 represented security to its holder. It indicated the right to permanently live and work in the United States and instantly communicated that right to law enforcement officials. As a result of the card's cumbersome official title, aliens, immigration attorneys, and enforcement officers came to refer to it by its color. The term "green card" designated not only the document itself, but also the official status desired by so many legal non-immigrants (students, tourists, temporary workers) and undocumented (illegal) aliens. The status became so desirable that counterfeit Form I-151's became a serious problem. To combat document fraud, the INS issued 19 different designs of the I-151 between its introduction in the 1940's and its complete revision in 1977. One alteration to the design in 1964 was to change the color of the card to blue. The 1964 edition was a pale blue. After 1965, it was a dark blue. Regardless of color, the I-151 still carried with it the benefits indicated by the term "green card," and those who wanted, obtained, issued, or inspected I-151's continued to refer to it by that name.

During the mid-1970's the INS studied methods to produce a counterfeit-proof Alien Registration Receipt Card for Lawful Permanent Residents. The result, introduced in January 1977, was the machine-readable Alien Registration Receipt Card Form I-551. In use today, the I-551 green card has been issued in various colors as well, including pink ("rose") and pink-and-blue. Despite these changes in form number, design, and color, the INS document which represents an alien's right to live and work in the United States will probably always be known as a "Green Card."

Source: Bureau of Homeland Security