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Navigating Immigration: Presented to The Pennsylvania Association of Community Health Centers Annual Conference | 215.885.3600 | 215.885.0324 (fax) |

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Presentation on theme: "Navigating Immigration: Presented to The Pennsylvania Association of Community Health Centers Annual Conference | 215.885.3600 | 215.885.0324 (fax) |"— Presentation transcript:

1 Navigating Immigration: Presented to The Pennsylvania Association of Community Health Centers Annual Conference | | (fax) | | | 101 Greenwood Ave. Ste 380 Jenkintown, Pennsylvania Lancaster, PA October 7, 2014 By: Wendy Castor Hess, Esq. & Karen M. Pollins, Esq.

2 What is an IMG? International Medical Graduate = physician who obtained a medical degree abroad; Includes U.S. citizens who chose to go to medical school abroad; Includes foreign born physicians who obtained Lawful Permanent Resident status or U.S. Citizenship; Our focus will be on IMGs who come to the U.S. to pursue training/employment on a nonimmigrant (temporary) visa… Goldblum & Hess | | (fax) | | 2

3 Recruiting Foreign Physicians & Providing Immigration Sponsorship Great tool for recruiting and retaining qualified physicians! Be careful not to discriminate in recruitment process! Treat all applicants the same – ask the same permissible questions: –Are you legally authorized to work for [our health center] in the U.S.? –Will you require visa sponsorship? Type of visa sponsorship will depend on foreign physician’s current and previously held visa status… Goldblum & Hess | | (fax) | | 3

4 Two Arms of Employment-Based Immigration Law for Physicians F H-1BO EB-1EB-2EB-3 J Professional Goldblum & Hess | | (fax) | | Training Can lead to U.S. Citizenship 4 (temporary) (green card)

5 Nonimmigrant (Temporary) Options for IMG Physicians: H-1Bs, J-1s, J-1 Waivers and O-1s Goldblum & Hess | | (fax) | | 5

6 H-1B Temporary Worker Nonimmigrant visa classification for IMG trainees or practicing physicians to work for a specific employer Duration: up to 6 years (with exceptions) H-1B cap (65, ,000 visas per fiscal year – not enough to meet demand in recent years) –Certain institutions exempt from cap: (1) colleges/universities, (2) affiliated nonprofits and (3) nonprofit government/research organizations –J-1 Waiver beneficiaries also exempt Goldblum & Hess | | (fax) | | 6

7 Requirements for H-1B Physicians Medical degree; USMLEs – Steps 1, 2 and 3 ECFMG Certificate for English language fluency (not required for Canadian physicians); and Valid state medical license. Note: Trainees with temporary licenses may be limited to H-1B status in 1-year increments (instead of the typical 3 years) Goldblum & Hess | | (fax) | | 7

8 H-1B Petition Process Obtain certified Labor Condition Application from U.S. Department of Labor File H-1B Petition with U.S. Citizenship & Immigration Services – detailing position and IMG’s qualifications (degree, USMLEs, ECFMG certification, license, etc.); Processing Time: –~ months via regular processing –15 days via Premium Processing Goldblum & Hess | | (fax) | | 8

9 J-1 Exchange Visitor Nonimmigrant visa classification that permits IMGs to obtain post-graduate medical training Duration: program length + 30-day grace period (generally limited to 7 years) Pro: No annual cap! Con: Requires return and physical presence in home country or country of last residence for two years. Goldblum & Hess | | (fax) | | 9

10 Post-Training Options for J-1 Physicians 1)Go home– satisfy two year home residence requirement; 2)Obtain a waiver of J-1 two year home residence requirement; 3)Obtain O-1 or other nonimmigrant visa status (defers, does not eliminate, two- year home residence requirement); or 4)Obtain Asylum/Withholding of Removal. Goldblum & Hess | | (fax) | | 10

11 J-1 Physician Waiver Options 1)Federal Interested Governmental Agency (IGA); 2)State Department of Health – Conrad 30 Program; 3)Exceptional Hardship; 4)Persecution. *** IMGs are ineligible for “no objection” waivers. Goldblum & Hess | | (fax) | | 11

12 Federal IGA Waivers Direct clinical employment by Interested Government Agency: e.g. Department of Veterans Affairs (VA), Delta Regional Authority (DRA), Appalachian Regional Commission (ARC). Conducting outstanding research: Department of Health & Human Services (HHS)/NIH. Goldblum & Hess | | (fax) | | 12

13 ARC J-1 Waiver Physician must have job offer at a HPSA facility in an ARC county that serves Medicare, Medicaid and indigent patients Limited to primary care Need support of state DOH/governor Physician must commit to working full-time (40 hours) for 3 years Good faith recruitment effort in 6 months prior to waiver application submission Contract restrictions – non-compete prohibited; liquidated damages required Goldblum & Hess | | (fax) | | 13

14 Conrad State 30 J-1 Waiver Program 30 slots per state per year Physician needs job offer at a facility in a federally-designated underserved area (HPSA, MUA/P) –Exception: 10 of the 30 may be for physicians not located in federally- designated underserved areas, but who treat patients from such areas (FLEX) Goldblum & Hess | | (fax) | | 14

15 Federal Conrad 30 Requirements Must provide full-time (40 hours) clinical services (i.e. direct patient care) 3 year service term (fulfilled in H-1B status) Physician must agree to begin employment within 90 days of USCIS approval Goldblum & Hess | | (fax) | | 15

16 Other State-Specific Considerations Primary care versus specialty care Application periods Contract restrictions (e.g. non-compete clauses) Filing fees Reporting requirements Number of slots utilized FLEX waiver policy Goldblum & Hess | | (fax) | | 16

17 J-1 Clinical Waiver Process Register – Physician submits Application to obtain case number with U.S. Department of State (DOS) Apply – Employer submits J-1 Waiver Application to State Department of Health (DOH) DOH recommends waiver to DOS DOS recommends waiver to USCIS USCIS issues final waiver approval Goldblum & Hess | | (fax) | | 17

18 Exceptional Hardship J-1 Waiver Hardship to U.S. Citizen or Permanent Resident spouse or child Need to show hardship if physician returns for two years either with or without qualifying relative Process: –I-612 Application filed with USCIS –Reviewed by DOS Waiver Review Division Processing time: ~ months Goldblum & Hess | | (fax) | | 18

19 Persecution J-1 Waiver Persecution based on race, religion, or political opinion IMG may also be eligible for asylum Process: –I-612 Application filed with USCIS –Reviewed by DOS Waiver Review Division Processing time: ~ months Goldblum & Hess | | (fax) | | 19

20 Immigrant (Permanent or “Green Card”) Options for IMG Physicians: NIWs and PERMs Goldblum & Hess | | (fax) | | 20

21 Green Card Process IMG physicians are usually in the Employment-Based, Second Preference (EB-2) category for “advanced degree professionals” Generally a 3-step process (1) Labor Certification (PERM) Application filed with U.S. Department of Labor (2) I-140 Immigrant Petition filed with U.S. Citizenship & Immigration Services (USCIS) (3) I-485 Application to Adjust Status filed with USCIS (if priority date current…) Goldblum & Hess | | (fax) | | 21

22 Introducing the Visa Bulletin Employment Based - October 2014 Visa Bulletin Goldblum & Hess | | (fax) | | Messages: “Priority Date”= date Application / Petition is filed with government o For those that require PERM, date PERM filed o For those that do not require PERM, date I-140 filed There is a backlog for 2 ND PREFERENCE physicians born in India and China Employment- Based All Chargeability Areas Except Those Listed CHINAINDIAMEXICOPHILIPPINES 1 st EB-1 Current 2 nd EB-2 Current15 FEB 0501 JAN 00Current 3 rd EB-3 01 OCT 11O1 APR 0915 NOV 0301 OCT 11 OTHER WORKER 01 OCT 1122 JUL 0515 NOV 0301 OCT 11 22

23 Labor Certification - PERM Employer must place ads (i.e. test the labor market) to show that it was unable to recruit minimally qualified, willing and available U.S. workers for the position Must show that IMG physician will be paid the “prevailing wage” in the area of intended employment Goldblum & Hess | | (fax) | | 23

24 National Interest Waiver (NIW) Waiver of labor certification requirement IMG physician must agree to work in a medically-underserved area (HPSA, MUA/P) for 5 years State DOH supports the NIW and issues a letter certifying that the medical service is in the “public interest” Good option for IMGs who already have 3-year service obligation pursuant to J-1 waiver Goldblum & Hess | | (fax) | | 24

25 CONCLUSION Although complex, immigration laws allow the recruitment of highly-qualified IMG physicians by U.S. employers! Keys for Success: Careful screening and strategic planning Advance planning Open communication Participation by employer, IMG and legal counsel throughout process Goldblum & Hess | | (fax) | | 25

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