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November 15, 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.

New Feature. We have recently added a chat room feature to our website. Starting soon, I will be hosting a monthly chat room whereby you can discuss your questions and issues with me in real time. This chat capability will also allow you to interact with other physicians and scientists on a variety of immigration related topics.

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 H-1B Visa quota may be reached in early 2004 –actions to take now

The annual quota (cap) of H-1B visas decreased on October 1, 2003, from 195,000 down to 65,000. Therefore, for the fiscal year extending from October 1, 2003 to September 30, 2004, only 65,000 H-1B visas will be issued. Since during the past few years, many more than 65,000 H-1Bs were issued, we expect that the now reduced cap will be reached sometime between February and March 2004. Physicians and scientists contemplating obtaining an H-1B visa should consider taking certain steps in the very near future to avoid the likely unavailability of these visas early next year.

The Cap does not apply to every situation. Please note that the cap does not apply to the following situations:

(a) individuals currently on H-1B visa, who are applying for renewal or transfer based on a new employer;
(b) individuals with job offers from universities and non-profit research/clinical organizations; and
(c) certain physicians who obtained J1 waivers.

The Cap may negatively impact physicians seeking H-1B visas to begin residencies/fellowships in July 2003, By the time the match occurs in March 2004, the H-1B cap may have already been reached. For physicians who have matched with hospitals which are non-profit AND which are affiliated with an institution of higher education (i.e. a medical school), the cap does not apply. However, the cap does apply to matched positions with for-profit and other hospitals which are not affiliated with universities. Unless the physician is certain that he/she will match with an ‘exempt from the cap’ hospital, certain steps should be taken now to provide the highest likelihood of being able to obtain H1B visa for graduate medical training.

(a) individuals on F1 practical training should apply for change of status to H1B now, even though the practical training status may be valid for a number of additional months – once on H1B status, applying for a H1B ‘transfer’ to begin residency/fellowship training will not be subject to the cap;
9b) apply for H1B visa for a medical research position now, sponsored by a physician group/research organization, for reasons as noted above;
(c) be sure to utilize premium processing (extra $ 1000 filing fee) to guarantee a 15 day response from the immigration service, as H1B visas filed under normal processing may require 6 months for adjudication, and the cap could be reached while the application remains in progress.

If you have concerns that your situation may place you at risk of missing the cap, be sure to contact me by email (info@MDgreencard.com) or phone (248-539-5300). I would be pleased to consult with you on this important issue.

( ** Please note that there is some talk in the U.S. Congress to increase the cap to 100,000 or so – stay tuned for more information **)

1.2 HHS J-1 Waivers – suspended at the moment

The US Department of Health and Human Services (HHS) has suspended the J-1 shortage-area waiver program temporarily, because the policy is under review. Effective from October 1, 2003 the HHS stopped accepting applications.

Well, as noted in the hot-topics and earlier editions of this newsletter, the HHS J-1 waiver program was quite flawed anyway – we pursued this option for just a very small percentage of our clients seeking J-1 waivers through employment in underserved areas.

The great majority of our J-1 waiver clients have instead had excellent success with the Conrad 30 route.

As to a possible date to reinstate the HHS program, stay tuned.

1.3 Unlawful presence in the U.S. – understanding the 3 and 10-year bars

We have received a number of inquiries lately concerning the misunderstood 3 and 10-year bars on re-entry for individuals who overstay the validity of their temporary visas in the U.S. The applicable law states that individuals who are ‘unlawfully’ present in the U.S. for more than 180 days are inadmissible back to U.S. (once he/she has departed) for a period of 3-years. For ‘unlawfully’ present individuals for more than one year, there is a bar of 10-years for admission back to the U.S.

The law specifically excludes certain time periods as not counting toward unlawful presence as follows:

(a) periods whereby the individual is under 18 years of age;
(b) periods during which the individual has a pending application for asylum;
(c) periods whereby the individual has Family Unity status;
(d) periods in which the individual is in violation of status due to abuse by a U.S. citizen or permanent resident spouse;
(e) periods whereby the individual has an application pending for adjustment of status to lawful permanent residence so long as the application was filed prior to the individual’s visa expiration; and
(f) periods whereby the individual has applied for change or extension of stay, whereby the application is pending.

* Please note that individuals admitted to the U.S. with I-94s valid for the duration of their stay (D/S) such as F1 students, J1 exchange visitors and others, unlawful presence does not accrue until the Immigration Service has determined a visa violation or an Immigration Judge has made a determination that the individual has violated his/her status.

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1.4 Applying for Canadian Immigration as a back-up – something to think about

A good number of our clients request information on Canadian immigration, as a back-up, due to the increasing delays and toughening regulations in the U.S. immigration process. Canada does indeed have easier immigration regulations and policies than those in the U.S., and for some individuals may indeed be the right choice to consider either as a temporary or permanent measure, if needed.

For more information on Canada immigration, please visit the following weblink (which is the official website of the Canadian immigration service):

http://www.cic.gc.ca/english/skilled/qual-1.html

With the above said, working in Canada as a physician may not be as easy as obtaining permanent residence status there, as Canada does have unusual laws in this area. Please email or call my office with further questions in this regard.

Hardship waivers are continuing to be possibilities for those individuals who can set forth hardships their U.S. citizens children or spouses will face if the two-year home residency requirement is imposed.

A few of our latest hardship waiver approvals involved the following situations:

(a) a Lebanese physician, with young U.S. citizen children, who no longer maintained any ties to Lebanon; hardship was shown by detailing the dangers American children would be faced in Lebanon, coupled with the deteriorating infrastructure of the country that have resulted in substandard education and healthcare, furthering putting the lives of the American children at risk;
(b) a Filipino physician, with an autistic U.S. citizen child; hardship was shown by detailing the child’s autistic condition and intense therapy the child was receiving in the U.S., and submitting expert testimony that autistic children need stability/continuity and that any move would cause regression of the child’s condition; and
(c) An Indian physician married to an American citizen currently enrolled in a Master’s program in the US; hardship was shown by detailing the emotional hardship the newly married couple would face by separating for a two-year period as well as the American spouse’s hardship she would face by quitting her studies and relocating to India.

Based on our continued success in this area, 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.

a. The United States (1930 versus the present)

Source: U.S. Census Data

b. Physician Demographics

The Top 20 States Ranked by Total Number of IMGs (% of IMG population):

TOP 20 STATES RANKED BY % of IMGs

Source: AMA

We appreciate your comments. Please direct your emails to us at info@MDgreencard.com

Please continue to visit our website at www.MDgreencard.com for information on our new chat room feature which will be functional soon.