H-1B Options for Foreign Physicians

• 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 to individuals in a “specialty occupation.”  A specialty occupation is defined as an occupation that normally requires a bachelor's or higher degree in a specialized field of knowledge as a minimum for entry into the occupation.  The practice of medicine is clearly a specialty occupation, but physicians also must meet other H-1B criteria specific to them.

Background

In the early 1990s, Congress provided physicians a clearer path through the previously burdensome patchwork of state laws that had imposed limitations on foreign physicians, such as limiting their work to teaching or research. Specifically, Congress changed the law to allow foreign-born physicians to qualify for temporary H-1B visas to participate in medical residencies and fellowships and to perform patient care, as long as the physician meets 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.

Immigration law requires most foreign physicians to meet various competency and licensing requirements.  For example, foreign physicians who did not graduate from a medical school accredited by the U.S. Department of Education must prove competence in oral and written English by passing the English proficiency test given by the Educational Commission for Foreign Medical Graduates (ECFMG). The physician must also meet the medical license requirements in the state where the physician intends to practice if performing direct medical care. In most states, this requires proof of passage of the United States Medical Licensing Examination (USMLE) (or a comparable examination, such as the Federation Licensing Examination (FLEX)).

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 change their nonimmigrant status to the H or L categories or before they apply for permanent residency.  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. That is, they do not have to obtain a J-1 waiver before seeking employment as a physician.

Canadian-Trained Physicians

Physicians educated, trained, and licensed in Canada have some licensing advantages over other international medical graduates. Interestingly, though, Canadian physicians still must pass the USMLE (or prove that they have passed a comparable previous examination) before obtaining H-1B status, even though most U.S. state licensing commissions do not require Canadians to pass the USMLE (or an equivalent) to obtain a state license. That is, U.S. immigration law requires more of Canadians than most state licensing commissions require of them.

Canadian physicians who do not want to take the USMLE, but still want to practice in the United States can do so by obtaining lawful permanent residence (i.e., a green card) directly. Although the USMLE (or equivalent) is required for a Canadian physician to practice in the United States temporarily, it is not required to practice in the United States permanently.

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 applicable 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.

Labor Condition Application (“LCA”)

The second step is filing the Labor Condition Application with 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 file a one-year or three-year extension based on having made sufficient progress toward obtaining employment-based permanent resident status.

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.  H-4 visa holders are not allowed to work in the United States; if they want to work they need to switch to a work-authorized status.