H-1B Options for Foreign Physicians

• Historical Background
• H-1B Requirements for Foreign Physicians
• Medical Residencies in the United States
• Special Advantages and Concerns for Canadian-Trained Physicians
• Application Process for H-1B Visa Status for Physicians
• Duration of Stay
• Families of H-1B Physicians

The H-1B visa is available for individuals in a “specialty occupation.”  A specialty occupation is defined as an occupation that requires a bachelor's or higher degree in a specialized field of knowledge as a minimum for entry into the occupation.  Physicians clearly qualify as a specialty occupation, and may be eligible for H-1B visa status.  However, U.S. immigration law imposes specific criteria for physicians seeking H-1B visas.

Historical Background

Until recently, U.S. law made it difficult for most foreign-born physicians to practice in the United States. Many states had laws on the books requiring physicians to be U.S. citizens in order to obtain licenses.  These state laws were declared unconstitutional, and are no longer allowed.  From 1976 to 1991, U.S. immigration laws prevented foreign-born physicians from obtaining temporary work visas in H-1B status to provide direct patient care. A physician in H-1B status was allowed only to teach or conduct research in the United States for a public or nonprofit educational or research organization.

In 1991, however, Congress changed the law and allowed foreign-born physicians to qualify for temporary visas to participate in medical residencies and fellowships and to perform patient care.  The Miscellaneous Technical Immigration and Naturalization Amendments of 1991 allowed physicians to obtain H-1B status, if they meet certain criteria.

H-1B Requirements for Foreign Physicians

A foreign physician may obtain H-1B visa status for the following purposes:

• To teach or conduct research at a public or nonprofit private educational or research institution or agency; or,
• To work for a U.S. employer as a physician.

The USCIS requires that foreign physicians meet strict licensing requirements.  The foreign doctor must have passed the Federation Licensing Examination (FLEX) or its equivalent.  The Department of Health and Human Services (HHS) has determined that the equivalent examinations are the National Board of Medical Examiners, the NBME, and the U.S. Medical Licensing Examination, the USMLE.   The physician must also meet the medical license requirements in the state where the physician intends to practice if performing direct medical care.  Finally, the foreign physician must have a full and unrestricted license to practice medicine in a foreign country, or have graduated from a medical school in the U.S. or a foreign country.

The foreign physician must also be competent in oral and written English, or be a graduate of a medical school accredited by the U.S. Department of Education.  To prove competence in English, the doctor must pass the English proficiency test given by the Educational Commission for Foreign Medical Graduates.

Medical Residencies in the United States

The H-1B visa status requires a medical license from the state where the physician will practice.  International medical graduates (IMGs) are required to complete medical residencies in the United States before a state will issue a medical license.  Most IMGs enter the country in J-1 “exchange visitor” visa status to complete a U.S. residency program.  Medical residents with J-1 visa status must return to their country of citizenship or last residence for two years before they may apply for permanent residency, or to change their status to the H or L visa category.  This home residency requirement may be waived by J-1 physicians. 

Many IMGs obtain H-1B visas to pursue U.S. medical residencies. IMGs who complete medical residency programs without obtaining J-1 status are eligible to be sponsored for H-1B visas by private employers and for permanent residence when they complete their residency program.

Special Advantages and Concerns for Canadian-Trained Physicians

Graduates of Canadian medical schools have certain advantages over other IMGs.  First, the U.S. Department of Education’s Licensing Commission on Medical Education (LCME) has accredited all U.S. and Canadian medical schools. Thus, Canadian medical school graduates are exempt from having to complete residencies in the United States.  Second, in over 40 U.S. states, physicians with medical licenses in Canada are not required to take U.S. examinations to obtain medical licenses. These states consider the Licentiate Medical Certificate of Canada (LMCC) examination to be equivalent to the FLEX.

Since most Canadian-trained physicians may obtain a medical license from a U.S. state without passing a U.S.-based examination, most Canadian physicians have not taken the FLEX, the NBME or the USMLE. However, U.S. immigration law still requires Canadian physicians to take the FLEX or its equivalent before these doctors are eligible for an H-1B visa.  The U.S. Health and Human Services Department has refused to designate any foreign medical examinations (such as the Canadian LMCC), as equivalent to the FLEX. This rule prevents many qualified Canadian physicians from obtaining H-1B visa status to practice temporarily in the United States, because they must interrupt their practice to take the FLEX examination even though they may already be licensed in the U.S. state where they will be employed.  Ironically, U.S. immigration law permits these same Canadian physicians to obtain permanent residence in the U.S. without having to pass the FLEX or an equivalent examination.

Application Process for H-1B Visa Status for Physicians

The H-1B application process requires three steps:

• Determine the prevailing wage for physicians in the same geographic area;
• File a Labor Condition Application (“LCA”) with the U.S. Department of Labor (“DOL”);
• File an H-1B petition with the regional service center of the U.S. Citizenship and Immigration Services.

Wage Requirements

The first step of the process is determining the prevailing wage.  U.S. immigration laws require that employers pay their H-1B physicians either the prevailing wage for other physicians in the geographic area where they will be employed or the actual wage paid to other similarly employed physicians, whichever is higher. Severe penalties may be imposed on any employer who violates this requirement. The Department of Labor provides a database of prevailing wage information on their website.

Labor Condition Application (“LCA”)

The second step is filing the Labor Condition Application to the U.S. Labor Department.  In addition to the wage requirement, the LCA requires that an employer attest that:

• The physician's working conditions will not adversely affect those of U.S. physicians similarly employed;
• There is no strike or lockout of physicians at the facility;
• The employer has given notice of the filing of an LCA to its employees either by serving the bargaining representative of the physicians, or if there is no bargaining representative, by posting two notices that an LCA has been filed. A copy of the LCA must be given to the physician.

The Department of Labor may investigate an employer to determine whether it is complying with statements contained in an approved LCA. Severe penalties may be imposed for any material misrepresentation or failure to comply with a statement contained in an LCA.

H-1B Petition

Once the LCA is approved, the third step is filing the H-1B petition with the USCIS.  This petition must establish that the job offer and the foreign physician meet the standards of the immigration law. The employer must demonstrate its ability to pay the appropriate wage. Although the law is not totally clear in this area, in a number of cases, USCIS has allowed a hospital which does not actually employ a physician, but which guarantees his salary, to act as a petitioner. The petition must include documents demonstrating the physician's education, licenses, and compliance with the English and the medical examination requirements.

The physician may begin working in the United States once the petition is approved and the physician has either changed his status to H-1B or has obtained an H-1B visa and entered the U.S. in that status.

Duration of Stay

H-1B petitions may be approved for up to three years.  After this term, H-1B visa status may be extended for a total of up to six years.  After six years have elapsed, the physician must either leave the United States or have began the application process for permanent residence status.  If your application for permanent residency has been pending for more than one year, physicians may be able to extend their H-1B visa status beyond the six year limit.

Families of H-1B Physicians

If a physician has H-1B visa status, the physician's spouse and unmarried children under 21 years of age may be granted H-4 visas status. H-4 status allows family members to live in the U.S. with the H-1B physician and to attend school.  However, H-4 visa holders are not allowed to work in the United States.