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November 15, 2006

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.

Website information: MDgreencard.com website will be completely updated and revamped in the next 1-2 months. J1waiver.com, our website created for J1 physicians seeking information on waiver options, will become fully operational during this time period as well. We welcome your comments.

Table of Contents
Topics for Physicians / Scientists

1.1 PERM Green Card processing -- the U.S. Dept. of Labor finally (nearly) gets it right

On March 28, 2005, the process for obtaining certification from the U.S. Department of Labor (an integral part of Green Card processing through employment based avenues) changed, from a State Department of Labor based system to a Federal (U.S.) Department of Labor based system, through electronic filing. The system has now been operational for just over 18 months. During this time period, our office has filed approximately 200 PERM applications for our physician clients. Our experience/opinions with the PERM system are set forth below:

1. The PERM process significantly shortens the process of obtaining the Green Card through the standard employment based route, through employer sponsorship. With PERM, Dept. of Labor approval (labor certification) has been requiring an average of 2-4 months from the date of filing (a few PERM cases have even been approved within 1-2 weeks of filing!). This compares quite favorably to the often 1-2 year period required by the individual State Dept. of Labors prior to the PERM process. Once the labor certification has been approved, the I-140 Immigrant Petition can promptly be filed (and usually even under premium processing, see below).

2. The PERM process is highly recommended to physicians and scientists, as these types of applications are nicely situated for PERM approvals. Of the approximately 200 PERM applications we have prepared/filed over the past 18 months for our physician clients, we have had four denials in total, three of which have been already re-filed and approved, and the other denial is in the midst of re-filing. The reasons for the denials were quite quirky -- one denial was issued because we had listed a P.O. Box for the employer's main contact address, as requested by the employer, and the other denials were due to issues ranging from the PERM system non-recognition of the physician's medical school or the PERM system's failure to properly account for the physician's internship training. In essence, the PERM system is excellent. The main issue has been (and continues to be) insuring that the employer keeps excellent records of the required recruitment steps as well as any contacts from US workers received in response to the recruitment activities.

3. Why not file PERM for every physician/scientist, you may ask? The only reason we can think of for not filing PERM is if the employer refuses to (or is reluctant to) adequately take the required recruitment activities to show that U.S. workers are not readily available for the position.

1.2 PREMIUM processing -- highly recommended

The Current Scoop: Premium (or expedited) processing is now available for both non-immigrant visa processing (H, O, L, visas, etc) as well as a number of Immigrant Visa (I-140) Petitions. For an additional government filing fee of $1000 U.S., the US Immigration Service guarantees the adjudication of the immigration petition within 15 business days.

The applicable chart of availability can be accessed by viewing the following web link:

www.uscis.gov/graphics/howdoi/prem_process.htm

As noted, premium processing is available for nearly all types of applications for immigration benefits commonly sought for by physicians/scientists (with the main exception being that EB1-Extraordinary Ability is not included in the premium processing program yet).

The main reasons for using the premium processing system are as follows:

1. It is often MUCH quicker than typical processing for both non-immigrant and immigrant visas. For example, it is not unusual for a regularly filed H visa application to require up to five (5) months for adjudication. With premium, that time frame is reduced to often under one (1) week. With respect to I-140 Immigrant Petitions, some petitions required 12-18 months for adjudication -- reducing this period to at most 15 business days is often extremely helpful in the particular client's immigration situation.

2. By filing in the premium processing system, case status and any potential issues with a particular filing can often be resolved just through a phone call with the US Immigration Service on their premium processing phone line. The US Immigration Service has set up a special (and highly professional) premium processing unit for handling all cases filed under premium processing -- these folks actually answer the phone when we call -- moreover, they can answer questions or handle issues relating to a filing promptly and efficiently. For those of us who are used to trying to resolve issues with regularly filed cases which often requires multiple phone calls/letters, the premium system is WONDERFUL.

3. Why NOT premium? We nearly always recommend it to our physician/scientist clients. The only downsides of the program -- it costs $1000 U.S. in addition to the standard filing fee; and in some particular/unusual situations (dealing with J1 visa waivers under the Conrad 30 program), we actually do not want the US Immigration Service to expedite processing.

1.3 Extending H1B visa validity beyond six (6) years - the reality

Under the following situations an H1B visa holder can extend stay beyond the typical 6 year limit:

(Scenarios whereby H1B visa extension will be granted in one-year increments beyond the six-year limit)

1. If the individual is the beneficiary of a pending (or approved) labor certification (NOT PERM ) application which was filed more than 365 days ago.

2. If the individual is the beneficiary of a pending (or approved) I-140 Immigrant Petition which was filed more than 365 days ago.

(Scenario whereby H1B visa extension may be granted for a three-year period beyond the six year period)

* If the individual is the beneficiary of an approved I-140 petition AND an immigrant visa number is not available for him/her due to the visa retrogression (most notably for Indian and Chinese physicians/scientists under EB2), the individual may extend his/her H-1B for a three-year period beyond six year limit. There is no 365-day requirement for this situation.

Extending the H1B visa beyond the six-year limit has indeed become a reality for many of our Indian and Chinese physician/scientist clients due to the retrogression of immigrant visa numbers in EB2.

1.4 Obtaining the Green Card while in residency / fellowship programs

One of the more common inquiries we receive from FMGs in residency/fellowship programs concerns the possibility of applying for Green Card (through hospital sponsorship) during the years spent in training programs. Here are the facts in this regard:

1. Medical Residencies and Fellowships are not permanent positions (i.e. position without fixed duration), and applications for permanent residency in the U.S. must indeed be based on permanent positions (not temporary training positions). So, legally speaking, it is generally not possible to obtain Green Cards for residents/fellows.

2. So, if it is not possible, how do some FMGs actually obtain Green Cards while in training programs? The temporary nature of the position is misrepresented on the application forms. Since the US Immigration officers are not physicians, many are not familiar with the terms medical resident or medical fellow (and many would not even think twice if the box ‘permanent employment' where checked on the Green Card application form). The attorneys at our organization are careful not to mislead/misrepresent the US Immigration Service, and thus advise our clients not to proceed with hospital sponsored Green Card applications while in medical training programs.

(It is possible, though, to apply for the Green Card in self-sponsorship categories such as EB1-Extraordinary Ability or EB2-National Interest Waiver while in training programs -- please note, though, that usually 20+ published articles is needed for a decent chance of success).

1.5 The Visa Queue (a reality for many Indian and Chinese physicians / scientists)

Indian and Chinese physicians/scientists (along with Mexican and Filipinos) often face additional wait time for final approval of their Green Cards due to the visa queue or quota backlog. Below are answers to commonly asked questions in this regard that are made available by the American Immigration Lawyers Association:

1. WHAT IS THE "QUOTA BACKLOG"?

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually . If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a "Priority Date." The priority date is the single, most important, factor in any immigration case.

2. WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?

Employment-Based First Preference (EB-1) Employment-Based Second Preference (EB-2) Employment-Based Third Preference (EB-3) Other Workers

3. WHAT DOES EB-1 MEAN?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

4. WHAT DOES EB-2 MEAN?

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master's or Ph.D.)

National Interest Waiver Physicians fall in EB-2, and indeed most physician/scientist applications fall in either EB-1 or EB-2.

5. WHAT DOES EB-3 MEAN?

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

6. WHAT DOES "OTHER WORKERS" MEAN?

Other Workers includes positions that require less than two years of experience.

7. WHAT IS THE "PRIORITY DATE"?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the I-140 Immigrant Petition is filed with the US Immigration Service.

8. WHY IS THE PRIORITY DATE IMPORTANT?

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

The current (November 2006) visa bulletin, as well as past visa bulletin's may be accessed from the following weblink:

www.travel.state.gov/visa/frvi/bulletin/bulletin_1770.html

9. CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?

There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

10. WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING "U" (UNAVAILABLE) AND " MM/DD/YY" (QUOTA BACKLOG)?

Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e. 07-01-02 ), it is considered to be the cut-off date, and that means that there is a "quota backlog". Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

11. WHAT DOES "C" MEAN?

"Current" – this means that there is no quota backlog in this category.

12. WHAT DOES IT MEAN TO BE "CURRENT"?

If there is a "C" in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

13. IF THE VISA BULLETIN SHOWS A DATE OF 6-1-02 AND MY PRIORITY DATE IS 6-1-02 , IS MY PRIORITY DATE CURRENT?

No. In order for the priority date to be current, it must be a date prior to the date published in the visa bulletin.

14. HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?

Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. (i.e., on 9-12-05, the DOS released the dates effective as of 10-1-05 ). Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

15. THE CUT-OFF DATE IS JANUARY 1, 2000 . DOES THIS MEAN THAT IT WILL TAKE 5 YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?

No. It all depends on how many visas are used. Please see the answer to the above question.

.16. I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?

You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer's green card process.

17. VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OF CITIZENSHIP OR COUNTRY OF BIRTH?

Your country of birth is what determines your country of chargeability.

18. MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE'S COUNTRY OF BIRTH HELP ME?

Your spouse's country of birth may also be used to determine chargeability. For instance, if you were born in India , but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse's country of birth.

1.6 -- 300 Million Americans - quick facts

The United States just reached a milestone. Joining China and India , it will become the third country to be home to at least 300 million people.

These are some ways the nation has changed since reaching 200 million in 1967:

Women in the Work Force

Women are now more likely to work than not. The percentage of women ages 16 and older in the labor force rose from 41 percent to 59 percent between 1967 and 2006.

Foreign-Born

The share of the U.S. population that is foreign-born rose from 5 percent to 12 percent between 1967 and 2006 . But the foreign-born still make up a lower share now than between 1860 and 1920. During that time, the share of foreign-born fluctuated between 13 percent and 15 percent.

The leading country of origin for the foreign-born was Italy in 1967. Now it's Mexico.

The foreign-born are now more geographically dispersed throughout the country. In 1990, only 10 percent of counties had populations that were 5 percent or greater foreign-born. By 2000, 20 percent of counties had populations that were at least 5 percent foreign-born.

Growing Older

The United States is aging. The number of people ages 65 and older rose from 19.1 million to 36.8 million between 1967 and 2006.

Life expectancy at birth climbed from 70.5 years to 77.8 years between 1967 and 2006.

Households

Between 1967 and 2005, the average household size declined from 3.3 to 2.6 people.

The proportion of households consisting of one person living alone increased from 17 percent to 26 percent between 1970 and 2005. Large households became less common: In 2005, 10 percent of the nation's households contained five or more people, down from 21 percent in 1970.

Suburbanization

Between 1970 and 2000, the percent of total population living in the suburbs of metropolitan areas rose from 38 percent to 50 percent.

Safer Roads

America 's roads are safer. In 2003, America averaged 1.5 traffic fatalities per every 100 million vehicle miles traveled, down from 5 fatalities per 100 million vehicle miles traveled in 1967.

Reference

U.S. Census Bureau, "Special Edition: 300 Million," accessed online at www.census.gov, on Sept. 15, 2006.