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April 1, 2008

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.

Note: Remember, for an online consultation pleae go to http://www.mdgreencard.com/consultation.html

Table of Contents
Topics for Physicians / Scientists

1.1 Obtaining a Green Card through self-sponsorship in EB1/EB2 – an update for 2008

US Immigration Regulations allow an individual to self-petition for the U.S. Green Card in the following categories applicable to physicians/scientists:

• EB1 Alien of Extraordinary Ability;
• EB2 National Interest Waiver (requesting waiver of job offer requirement); and
• EB2 National Interest Waiver (based on 5 year work commitment in an under served area or at the VA).

At the outset, it is important to note that obtaining approval in any Green Card category does not waive the two-year home residency requirement of a previously held or currently held J1 visa (you must obtain a waiver apart from the Green Card process).

Update for 2008: We have had excellent success with EB1 Applications over the past number of months, with the US Immigration Service approving the great majority of applications prepared by our office. Kindly note, however, that the typical EB1 applicant exhibited at least 20 research publications as well as awards, abstracts, grants, and similar accomplishments. EB1 is particularly useful for our Indian physician/scientist clients with excellent credentials, as there continues to be a long queue for EB2 for these folks. As to EB2 National Interest Waiver (requesting waiver of the job offer requirement), we have had equally good success with these applications – indeed, for physicians/scientists not from countries with additional backlogs (India, China, Mexico, Philippines), EB2 is often the category of first choice for Green Card applicants, as it somewhat easier to obtain approval than EB1. EB2 National Interest Waiver (based on 5 year work commitment in an underserved area) is indeed most useful to individuals who seek to obtain travel documents promptly for foreign travel prior to fulfilling their five year work commitment – kindly note that such is not available to nationals from countries where a visa queue exists for EB2 (India, China, Mexico, Philippines) – hence this category is not (at present) very useful to these individuals – instead, we would recommend that they proceed under PERM for Green Card.

Kindly note that medical residents and fellows with strong credentials are encouraged to apply for Green Card in EB1 or EB2, as we have lately obtained several approvals for these individuals, which often results in an easier job search following training completion.

1.2 H-1B Processing for Medical Residents/Fellows AND for Graduating Medical Residents/Fellows

The H1B visa cap for 2008-2009 will likely be met by April 2, 2008, meaning that H1B visas for non-cap exempt individuals will be not available again until October 1, 2009.

Fortunately, 99% of medical residents/fellows are EXEMPT from the H1B visa cap, as the petitioning employer is a non-profit hospital affiliated with an institution of higher education (i.e. university).

Moreover and equally as important, the GREAT MAJORITY of GRADUATING medical residents and fellows with job offers with private employers will also be EXEMPT from the H1B visa cap, so long as the employment accepted upon graduation involves spending a portion of work at an exempt institution. As a result, if the physician will have admitting privileges and/or will spend any part of the time working (seeing patients, etc) at a non-profit hospital affiliated with a university, the physician remains EXEMPT from the H1B visa cap.

MORE THAN 95% of our physician clients are EXEMPT from the H1B visa cap.

Contact us with questions in this regard, as legal counseling with this issue is indeed very important at this time.

1.3 J1 (Hardship) Waiver Update – A successful appeal demonstrates provides hope for future applicants

Over the past few months, the majority of hardship waiver applications have been denied by the California Service Center officer handling these cases (kindly note that all hardship waiver applications are now forwarded to the California Service Center for adjudication). The reasons for the denials have been weak and poorly written – essentially, it appears that this ONE PARTICULAR US Immigration Officer has taken a stand against hardship waiver applicants. Prior to the past few months, our office had an exceptional record of hardship waiver approvals (more than 90%).

Successful appeal of the first denied application. A few months ago, we received our first hardship waiver denial from the California Service Center (Pakistani physician, with US citizen child). Based on the weak reasons for the denial, we appealed the denial to the BOARD OF IMMIGRATION APPEALS (BIA). Just recently, the BIA has ruled in our favor and REVERSED the denial of the hardship waiver application by the US Immigration Service Officer.

Hence, we are strongly recommending to our clients as well as to anyone with a hardship waiver denial to seriously consider an APPEAL to the BIA, as it appears that the BIA is in the process of reversing the clearly wrong decisions of the immigration officer at the California Service Center who has decided to mount a personal attack against hardship waiver applicants.

1.4 J1 (Persecution) Waiver Update – An alternative for some

Persecution based J1 visa waivers have been increasingly available for physicians who can demonstrate that they will be persecuted if forced to return home for the two-year home residency requirement – lately, we have obtained approvals for physicians from countries such as Pakistan and India (Kashmiri physicians), where a showing of likely persecution could be demonstrated. Indeed, in certain cases, the persecution waiver is a good alternative to the hardship waiver.

1.5 PERM Processing - Interesting Statistics for PERM applications

There are several ways of applying for US permanent residence (or "green card" status). The most common employment-based method is through labor certification. Labor certification is an official government finding that an insufficient supply of willing and qualified U.S. workers are not available to fill the position in question and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated US workers. As of March 28, 2005, all labor certification applications must be filed in accordance with the Department of Labor's (DOL's) newly issued PERM regulations.  

PERM processing has proven to be EXTREMELY USEFUL for our physician clients – indeed, PERM if often the most highly recommended method of obtaining a Green Card for our clients.

Interesting statistics for applications submitted in 2007 are set forth below:

• 85,000 PERM applications were approved by the US Dept. of Labor in 2007, representing 87% of the nearly 98,000 applications submitted
• Foreign workers representing 176 countries were certified for permanent work in the U.S.
• Nearly 60% of all PERM approvals were for small employers (those with less than 250 employees)
• Citizens of India received nearly 25,000 PERM approvals (30% of the total approved), with Chinese citizens receiving 7,000, Mexican citizens receiving 6,000, and other nationalities following
• Physician and health care workers received 5,000 PERM approvals (6% of the total), while information technology workers received 22,000 PERM approvals (27% of the total)
• The average age of a foreign worker at PERM Certification is 34

(reference – Office of Foreign Labor Certification – Employment/Training Administration – US Dept of Labor – February 2008)