PERMANENT RESIDENCE OPTIONS FOR FOREIGN PHYSICIANS

1. BASIC PERMANENT RESIDENCE PROCESS

As we explained in the " employment-based permanent residence" link, immigrant visas are divided into three basic categories or preference systems. The most common options available for physicians would be in the First Preference Category: immigrant visas for persons with extraordinary ability and outstanding professors and researchers; and in the Second Preference Category: immigrant visas for professionals holding advanced degrees and individuals with exceptional ability.

A. First Preference Category

• Persons with Extraordinary Ability: this sub-classification is reserved for "the small percentage who has risen to the very top of their chosen field or endeavor". "Extraordinary ability" must be demonstrated by sustained national and international acclaim, evidenced by a one-time achievement, such as the receipt of a major, internationally recognized award (e.g., Nobel Price). Fortunately, since most aliens are not recipients of a Nobel Prize, the law provides that any three of the following is sufficient:

1. Receipt of a lesser nationally or internationally recognized prizes or awards;
2. Membership in the field which demands outstanding achievement of their members;
3. Published material written by others about the applicant's work;
4. Participation as judge of the work of others;
5. Evidence of scientific or scholastic contributions of major significance to the field;
6. Authorship of scholarly articles in the field;
7. Evidence of performance in a leading role for organizations that have distinguished reputation;
8. High remuneration in relation to others in the field;

If the above standards do not apply, the applicant may submit other "comparable evidence".

The burden of proof in this category seems extremely high. However, no job offer or labor certification is required.

• Outstanding Professors and Researchers: to qualify this sub-classification requires at least three years experience in teaching/researching in the field or any combination of the two. A job offer is required in a tenure or tenure-track teaching or comparable research position. In addition, the outstanding professor or researcher must satisfy at least two of the following:

1. Receipt of major prizes and awards;
2. Membership in the field which demands outstanding achievement of their members;
3. Published material written by others about the applicant's work;
4. Participation as judge of the work of others;
5. Evidence of original scientific or scholastic contributions of major significance to the field;
6. Authorship of scholarly books or articles in the field.

No labor certification is required although an offer of employment for an employer meeting the qualifications as set on the regulations is required.

B. Second Preference Categories

This classification is most commonly used for physicians seeking employment-based permanent residence. It contains the following sub-classifications:

• Members of Professions Holding Advanced Degrees: advanced degree is defined as any degree beyond the US baccalaureate or foreign degree equivalent. This sub-classification is easily accessible for physicians who will always posses the required advanced degree. Labor certification is required.

To obtain a labor certification the physician must have a state license in the state where the labor certification is filed at the time it is filed. Labor certification can be waived if physician applies for a National Interest Waiver. An additional requirement is passage of the National Board of Medical Examiners exam (NBME); the Foreign Medical Graduate examination in the Medical Sciences (FMGEMS), or the United States Medical Licensing Examination (USMLE) Step I and II.

• Individuals with Exceptional Ability: this sub-classification also requires labor certification, with the convenience that labor certification need only to demonstrate that there is no individual more qualified than the applicant (as opposed to showing lack of minimally qualified US workers which entails a higher burden of proof). Proving "exceptional ability" for some physicians may not be difficult since regulations require the applicant to provide documentation of at least three of the following six groups:

1. Degree relating to the area of exceptional ability;
2. Letter form current of former employer evidencing at least 10 years experience in the field;
3. License to practice the profession;
4. Evidence that the applicant has commanded a high level of salary or remuneration;
5. Membership in a professional association, and Evidence of recognition for achievements and significant contributions to the field.

Comparable evidence can be submitted to establish the applicant's eligibility.

2. NATIONAL INTEREST WAIVER

Foreign physicians wishing to become lawful permanent residents have available several migratory options. One option is the National Interest Waiver convenient for those physicians already working in health professional shortage areas. The other option is applying for employment-based immigrant visas which include several alternatives.

The National Interest Waiver (NIW) is a waiver from the job offer and labor certification requirement if the work by the alien is in the "national interest" (note that the NIW is available for aliens "members of the profession holding advanced degrees" or EB-2 category). This determination is made by the Attorney General. In September 2000, legacy INS released interim regulations granting NIW to physicians who serve at least five years in medically underserved areas.

Approval of a NIW is subject to a three-part test:

1. It must be shown that the person seeks employment in an "area of substantial intrinsic merit";
2. It must be shown that the proposed benefit is "national in scope"; and
3. The petitioner must demonstrate that the national interest would be adversely affected if labor certification were required.

To obtain a NIW for a foreign physician, the following requirements must be met:

• Physician must agree to work full-time in a health shortage area as designated by the Secretary of Health and Human Services or at a VA facility;
• Determination by a federal agency or state public health department that the work is in the public interest; and
• Physician must work full-time for an aggregate of 5 years (waivers filed before November 1st, 1998 are approved with evidence of full-time work for 3 years instead of 5).

Click the following USCIS link for more detailed information regarding immigration under the NIW for Physicians in Underserved Areas.

CONCLUSION

One of the advantages of a NIW is that once approved, I-140 petitions and Adjustment of Status applications can be filed prior to the completion of the fifth year. This means that the H-4 spouse, who is not permitted work under an H-4 visa status, may obtain an Employment Authorization Document early into the physician's term of practice, a desirable alternative aimed to increase household income.

Additionally, in current J-1 waiver cases, employers are choosing to extend contract terms to five years making the five-year commitment for NIW applications a much less inconvenient factor.