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February 20, 2007

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 web site. 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.

Web site information: Our MDgreencard.com website has a new ‘look and feel' – kindly view of our newly designed site, which also has additional features. J1waiver.com, our web site created for J1 physicians seeking information on waiver options, will become fully operational shortly – stay tuned. We welcome your comments.

Clients now in 49 U.S. States and nearly 120 foreign countries – with the addition of a Native American Health Consortium as our client in Anchorage, Alaska, our law firm now presently has clients in 49 of the 50 U.S. States (with the sole exception of Mississippi), and 118 foreign countries. Thank you for your support!

Table of Contents
Topics for Physicians / Scientists

1.1 National Interest Waivers for SPECIALISTS – the U.S. Immigration Service agrees to extend the NIW program to include physicians other than primary care

In a recently issued Memorandum (January 23, 2007), following the court decision in Schneider v. Chertoff, the U.S. Immigration Service (USCIS) is now willing to accept specialist physicians as applicants for the National Interest Waiver (NIW) program based on a five-year agreement to work in a federally designated underserved area or at the VA.

This is an important victory for specialist physicians, who have previously been excluded from the NIW program.

The USCIS Memorandum also contains other important information for physicians considering NIW applications. Contact our office for further information in this regard.

1.2 The Effect of the recent U.S. Immigration Service Interoffice Memorandum on Physicians on H visas

On December 5, 2006, USCIS issued an Interoffice Memorandum clarifying periods of admissions for aliens in H and L status.

Specifically, the memorandum sets forth a number of important clarifications, as noted below:

A. The time spent as H4 or L2 dependent does NOT count toward the maximum allowable period of stay available to the principal alien in H1B or L visa status

The standard maximum period of stay in the U.S. on H1B visa is six-years, while the maximum

period of stay is seven-years on L1A visa (and five years on L1B visa). At the end of the maximum period, the individual typically must either change to a different status or depart the U.S. U.S. Immigration regulations then provide that an individual who has been outside the U.S. for at least one year may be eligible for a new six-year period of admission in H-1B status or a new five-year or seven-year period in L-1 status.

The Immigration Regulations do not address whether individuals in H4 or L2 status are subject to the same maximum periods of admission. 

Consequently, USCIS has now clarified that any time spent in H4 status will not count against the six-year maximum period of admission applicable to H1B aliens. Thus, an individual who was previously an H4 dependent and subsequently becomes an H1B principal will be entitled to the maximum period of stay applicable to the classification.  Also, the memorandum provides that time an alien has spent time in L2 dependent status will not count against the time available to the alien in L1 visa status.

This is particularly good news for physicians who originally were on H4 status – upon change to H1B visa status, they are now permitted an additional six (6) years of stay on H1B. Excellent news indeed!

B. Maintaining Current H-1B Status is Not Required for H-1B Extensions Beyond the Six-Year Maximum

In Section 106 and 104 (c) of AC21 as set forth under current immigration regulations, exemptions were set forth to the six-year maximum period of stay rules for certain H1B visa holders who were being sponsored by employers for permanent residence and who were subject to lengthy processing delays.

As now clarified by the USCIS memo, eligibility for such extensions beyond the six year term is applicable to individuals regardless of whether they are in the U.S. or abroad, and regardless of whether they currently hold H-1B visa status. This is a SIGNIFICANT change in USCIS policy, and indeed may benefit a significant number of individuals previously on H1B visa status. Kindly contact our office with further questions in this regard.

C. Individuals who previously held a cap-subject H status, have been outside the US for one year or more, and did not exhaust their six years of H eligibility are eligible for readmission in H status for the remainder of their unused H-1B time

The memorandum also addresses the situation of an individual who previously held H-1B status for less than six years and now seeks to be readmitted to the United States after an absence of one year. Current regulations allow the individual to be granted a new six-year period of H-1B status if they previously reached their maximum limit and have remained outside the United States for one year. However, this also subjects the individual to the annual cap on H-1B visas and may present significant timing issues if the cap is exhausted for the given fiscal year when the individual seeks to be readmitted. Until further guidance is issued, the USCIS will permit an individual to elect either to be readmitted for the remainder of their unused H-1B time or to be admitted for a new six-year period subject to the H-1B cap (unless an exemption is applicable).

The full text of the memorandum can be found at the following weblink:

www.nafsa.org/_/Document/_/ uscis _memo_on_h-1b_eligibility.pdf

1.3 H-1B Cap for Fiscal Year 2007 – Important information

On April 1, 2007, employers may begin filing new H-1B petitions for Fiscal Year 2008, which begins October 1, 2007. The quota or "cap" for new H-1B petitions is 65,000 per year, with an additional 20,000 H-1Bs are available for beneficiaries with U.S. master's degrees. Last year, the H1B visa cap was reached within a few months. We anticipate that the H1B visa cap for this coming year will be reached by May 15, 2007. Employers are encouraged to plan ahead, as numbers may run out quickly after filing begins. Please contact us to begin the process for H-1B petitions for new hires, changes of status to H-1B (such as change from L-1 or TN), and students whose optional practical training EADs will expire prior to October 1, 2008. Please note that the H-1B cap applies only to new H-1B petitions, and NOT to extensions of stay; many petitions to change employer; petitions for foreign nationals seeking employment with institutions of higher education, nonprofit research organizations and government research organizations; and petitions for physicians who previously held J-1 status and have applied for waiver of the two-year residence requirement based on Conrad 30 waivers.

For Physicians completing their residencies at exempt institutions in June 2007 who seek to engage in private practice for a non-exempt employer beginning July 2007, please note that the new position may still be CAP-EXEMPT so long as a portion of the medical care you will provide will be located at a cap-exempt hospital (non-profit hospital affiliated with institution of higher education). Kindly note that the GREAT MAJORITY of hospitals in the U.S. qualify in this regard, and thus would result in continued exemption from the cap for the physician. Kindly call our office for more information in this regard.

1.4 Physicians for Underserved Areas Act Renewed – A needed extension of the Conrad 30 J visa waiver program

On January 12th 2007 President Bush signed H.R. 4997, the “Physicians for Underserved Areas Act” extending the program for 2 years. This program allows for a J-1 waiver for physicians who work in underserved medical areas in the U.S., it is an extension of the Conrad 30 J waiver program. With the renewal of this program physicians may stay in the United States and help serve a community that is in need of his or her assistance. The program is mutually beneficial and this two year extension will no doubt help many patients, in addition to allowing many dedicated and talented physicians to stay in the U.S.

The Conrad 30 J1 visa waiver continues to be an excellent option (and often the option of first preference) for many physicians seeking waiver of the two-year home residency requirement. Kindly note that our office has (to date) never had a J1 visa waiver application under the Conrad 30 J1 visa waiver program refused by a State Health Agency.