IMMIGRATION OPTIONS FOR

HEALTHCARE

PROFESSIONALS

PRESENTATION FOR THE MGH POST-

DOCS ASSOCIATION

January 13, 2014

Presented by :

I ando l i & Desa i , PC

Richard Iando l i Prasant Desa i

Eo in Re i l l y Made l ine C ron in

www. iando l i .com

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OVERVIEW OF US IMMIGRATION

U.S. CITIZENS – Birth or Naturalization

FOREIGN NATIONALS

Lawful Permanent Residents – Immigrants

(“Green Card” Holders)

Nonimmigrants – Persons temporarily

permitted to in U.S. – F’s, J’,s O’s & H’s

Refugees/Asylees/TPS

Persons present without lawful status

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POPULAR NONIMMIGRANT WORK

VISAS

H-1B – Temporary professionals

H–1B1 - Singaporeans/Chileans

TN – Canadians & Mexicans under NAFTA

E-3 – Australians only

E-1/E-2 –Treaty traders/Treaty Investors

O– Persons of extraordinary ability

L – Intra-company transferees

J – Exchange scholars/trainees

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TWO YEAR HOME RESIDENCE REQUIREMENT

FOR J-1 EXCHANGE SCHOLARS & CLINICIANS

•The 2-year Home Residency Requirement (2YHRR) applies to three types:

I. J-1 “Physicians” receiving medical training, clinical residency, or fellowship;

II. J-1 visitors who receive government funding;

III. Home country is in need of their skills/talents (“Skills List”)

MAY NOT FILE FOR H-1B, L-1 STATUS, OR PERMANENT RESIDENCE UNLESS FULFILL OR WAIVE 2YHRR

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J-1 WAIVERS

2YHRR can be waived

Four types of waivers:

i. Persecution

ii. Exceptional Hardship

iii. “No objection” statement (not

applicable to Medical Trainees)

iv. Interested Government Agency (IGA)

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J-1 WAIVERS

BASED UPON PERSECUTION OR HARDSHIP

Persecution: J-1 will suffer persecution on account of race, religion, or political opinion if he/she returns to the home country or country of last permanent residence

Hardship: 2YHRR waived if it would subject J -1’s U.S. citizen or permanent residence spouse and/or child to “exceptional hardship”

Both types of waivers are filed first with Department of Homeland Security (DHS) California Service Center via Form I-612

If DHS approves, it then requires Department of State concurrence

Timing issues

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J-1 WAIVER

“NO OBJECTION”

NOT available to foreign medical graduates engaged in medical education or training

Is available to J-1 physicians whose U.S. programs involve observation, consultation, teaching, or research.

Process:

Department of State Case Registration;

Request to home country’s embassy in Washington, D.C.; and

Coordination with US Citizenship & Immigration Services

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J-1 WAIVERS

INTERESTED GOVERNMENT AGENCY

FEDERAL GOVERNMENT AGENCIES

CONRAD WAIVER: Clinical Physician Waivers

- Department of Health & Human Services – primary

care. Work at facility located within an underserved

area

- Conrad 30 Programs – Each state may sponsor up to

30 physicians per year

- Specialists

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INTERESTED GOVERNMENT AGENCY

RESEARCH-BASED J-1 WAIVER

Employer files application requesting gov’t support for waiver

Must demonstrate:

Scientific interest

J1’s specific research role in program

Extent of leadership role of J1 holder, other factors

Unique qualifications of J-1 holder

Review Process:

1. Executive Secretary of HHS

2. Technical review by HHS scientists

3. HHS Waiver Review Board

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O-1 NONIMMIGRANT VISA

Temporary work visa, eligibility requirements similar

to EB-1(a) (person of extraordinary ability)

permanent residence category

Must be sponsored by a U.S. employer or agent, for

an "event“ (scientific projects, academic years,

lecture series, conferences, business projects, or

tours)

Maybe only option for those on J -1 visa with no time

left and who are subject to the two-year home

residency requirement

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LAWFUL PERMANENT RESIDENT-

IMMIGRANT CATEGORIES

Employment Based

Family Based

Diversity Lottery

Investment

Asylum/Refugee

Cancellation of Removal

Registry

Others: CIR, VAWA, Etc.

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CATEGORY & COUNTRY QUOTA BACKLOGS

Significant backlogs in Employment -based cases have

developed – Visa Bulletin – FEBRUARY 2014

http://travel.state.gov/visa/bulletin/bulletin_1360.html

CATEGORY All OTHER

COUNTRIES

CHINA

MAINLAND

BORN

INDIA MEXICO PHILLIPPINES

1st C C C C C

2nd C 08 Jan 09 15 Nov 04 C C

3rd 01 Jun 12 01 Jun 12 01 Sep 03 01 Jun 12 15 Apr 07

Temporary Status

Must always maintain temporary status and not work without authorization until time to file for adjustment of status to permanent residence

Typical categories: F1, J1, O-1, H-1B

Typically may not leave US once residence application filed unless you have received ‘Advance Parole’ permission to travel

Gaining Residence Status

Process starts with fil ing a labor certification app. or immigrant petition on Form I -140. This gains a Priority Date (PD)in quota line.

May concurrently file residence app on Form I -485 with the Form I -140 if PD is “current” (see Visa Bulletin). May also file for work and travel permission with Form I -485.

GREEN CARD PROCESS GOING FROM TEMPORARY

TO PERMANENT STATUS

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MAIN EMPLOYMENT BASED PERMANENT

RESIDENCE CATEGORIES

EB-1(a) Person of Extraordinary Ability

EB-1(b) Outstanding Professor or

Researcher

EB-1(c) International Manager or

Executive

EB-2 Masters Degree/Exceptional Ability

EB-3 Bachelors Degree/Other Workers

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EB-1(A): PERSON OF

EXTRAORDINARY ABILITY

The EB-1(a) category is for aliens of extraordinary ability in the sciences, arts, education, business or athletics.

May Self-Sponsor.

Same criteria as O-1 Nonimmigrant category but more rigorous USCIS adjudication

STEP 1: MUST HAVE RECEIVED A MAJOR PRIZE – OR - MEET AT LEAST THREE CRITERIA SET OUT IN REGULATIONS STEP 2: FINAL MERITS DETERMINATION BOTH STEPS ARE SUBJECTIVE

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EB-1(A): PERSON OF EXTRAORDINARY

ABILITY, CRITERIA–TWO STEP APPROACH

MUST PROVE:

Receipt of "major, internationally recognized award, such as the Nobel Prize,

OR

MUST MEET 3 OF THE FOLLOWING:

• Receipt of lesser nationally or internationally recognized prizes/awards

• Member in associations that demand outstanding achievement

• Published material about you in professional publications

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EB-1(A) STEP 1:

MEETING THE CRITERIA

• Judged the work of others, either individually or on a panel – peer reviewer

• Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance

• Authorship of scholarly articles in professional

publications or other major media • Leading or critical role in distinguished organizations • Commanded large salary

• Miscellaneous, other comparable evidence

EB-1(A): PERSON OF EXTRAORDINARY

ABILITY, CRITERIA (CONTINUED)

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“USCIS will evaluate all of the evidence in the record

to make a final merits determination of whether or

not the petitioner, by a preponderance of the

evidence, has demonstrated that the beneficiary has

sustained national or international acclaim and that

the beneficiary’s achievements have been recognized

in the field of expertise, indicating that the

beneficiary is one of that small percentage who has

rise to the very top of the field of endeavor.”

EB-1(A) STEP 2

THE FINAL MERITS REVIEW

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EB-1(B) OUTSTANDING PROFESSOR OR

RESEARCHER

• Professor or Researcher is recognized internationally as outstanding in the academic field.

• Must have sponsorship by and an offer of employment from a U.S. university or institution of higher learning or private research entity (with at least 3 f/t researchers) for a tenure or tenure-track teaching position in your academic field, or a permanent research position in your academic field;

AND

At least 3 years of teaching and/or research in your academic field; AND

At least two of the following eligibility criteria:

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EB-1(B) ELIGIBILITY CRITERIA

(CONTINUED)

Receipt of major prizes or awards for outstanding

achievement

Membership in associations that require their members to

demonstrate outstanding achievements

Published material in professional publications written by

others about the alien's work in the academic field

Participation, either on a panel or individually, as a judge of

the work of others in the same or allied academic field

Original scientific or scholarly research contributions in the

field

Authorship of scholarly books or articles (in scholarly journals

with international circulation) in the field

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EB-2 MASTERS DEGREE

Have U.S. Masters Degree (foreign equivalent

accepted) AND

Labor Certification, OR

National Interest Waiver (NIW) – 2 types:

- General

- Physicians only

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NATIONAL INTEREST WAIVER

GENERALLY

MUST PROVE THAT YOU ARE EXCEPTIONAL

MAY SELF-SPONSOR

NO LABOR CERTIFICATION REQUIRED

MUST DEMONSTRATE:

a. your work is intrinsically valuable

b. your work is national in scope, and

c. your role overcomes the Government’s

interest in protecting the U.S. job market

Physician Researchers in various areas of biomedical

research supported by National Institutes of Health

grants

Endocrinologist with some research, not supported

by NIH grants but a key physician at leading hospital

Others?

EXAMPLES OF SUCCESSFUL NATIONAL

INTEREST WAIVER CASES

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NATIONAL INTEREST WAIVER

PHYSICIANS

5-year commitment to work in a Medically Underserved Area (See J-1 Conrad Waiver)

State Department of Public Health must agree that work is in the public interest

5 years can be as an H-1B or O-1 or with Employment Authorization

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PERMANENT EMPLOYMENT CERTIFICATION

(LABOR CERTIFICATION)

Labor Certification is the authorization by the U.S. Department of Labor for a U.S. employer to sponsor an alien worker

after a search for qualified workers

at the minimum education, skills and training necessary to do the job

at the required wage

The current method of Labor Certification is called “PERM” and is done on-line

Perm cases are currently averaging under 4 to 12 months after filing

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SPECIAL HANDLING

LABOR CERTIFICATION

Special Handling: available only to colleges and universities.

Requirements:

Position offered must be full time and permanent

Position must involve some classroom teaching

Research positions may qualify as long as there is some teaching component

Institution must demonstrate that sponsored worker was the most qualified candidate (specific procedures apply)

Must file application within 18 months of selection (generally, the offer date)

Pre-certified occupations:

Group I: Nurses, Physical Therapists

Group II: Alien of exceptional ability in sciences or arts (requirements similar to extraordinary ability)

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SCHEDULE A

LABOR CERTIFICATION

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RECAP OF PREFERENCE CATEGORIES

EB-1’s do not need Labor Certification (EB-1A’s may self sponsor. EB-1B’s require a sponsor.)

EB-2’s do need Labor Certification & sponsorship except those with a National Interest Waiver (NIW’s may also self sponsor)

EB-3’s do need Labor Certification

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FAMILY BASED

Sponsored by U.S. Citizen: Parent Spouse Son or Daughter – married or unmarried Sister or Brother Child (under 21) Refer to Visa Bulletin for family-based backlog information

Immediate relatives (IR) of U.S. Citizens: Parent, spouse or unmarried minor child (under 21) of a U.S. Citizen

- The sponsor of a parent must be 21 years or older - There is no annual quota for IR’s - IR’s who have been inspected & admitted may apply for adjustment of status in the U.S., even if they violate their status or work illegally Sponsored by Lawful Permanent Resident Spouse - Unmarried son or daughter

Refer to Visa Bulletin for backlog information

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FAMILY BASED IMMIGRATION

(CONTINUED)

• 13-year, multi-stage path to citizenship for 12 million undocumented

• Dual intent for student visa holders

• Increasing the H-1B quota

• Authorizing employment for spouses of H-1B visa holders

• Recapturing unused green card numbers

• Increase in Immigrant Visa quotas

• Adding new ‘merit -based’ immigrant & non -immigrant categories

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COMPREHENSIVE IMMIGRATION REFORM

(CIR) POSSIBILITIES