Overview of the Law
The U.S. Immigration system is divided into two major categories: immigrants (persons who are granted permission to reside permanently in the United States) and non-immigrants (those who are in the country for a temporary purpose and/or limited period of time).

The non-immigrant visa classifications typically require the alien to have a residence abroad which he or she has no intention of abandoning. Changes made in 1990 to the law, however, began to recognize the concept of dual intent for certain non-immigrant classifications. Under the concept of "dual intent" an alien could be a bona fide non-immigrant while simultaneously seeking eligibility to immigrate.

 

Physicians

Immigration by Physicians or "International Medical Graduate's (IMG's)" requires careful planning. Thomas Bassett and Associates can assist you with planning a strategy enabling you to accomplish both your short term as well as your long term goals. The following information is offered as a starting point to assist you in gaining an overview of some of the concepts and opportunities available to physicians who wish to come to the United States on a temporary basis (as a non-immigrant) or as a U.S. permanent resident. Of particular interest to IMG's are the classifications listed below, but there may be other opportunities available given the individual's facts or particular circumstances.

 

Non-immigrant Visa Classification Available to Physicians

H1B1 Clinical Work (direct patient care)
H1B1 Teaching /Research (incidental patient care)
J-1 Graduate Medical Trainee
J-1 Teaching or Research (incidental patient care) limited cases only
TN Teaching/Research only (available only to Canadian and Mexican Nationals
O-1 Aliens of Extraordinary Ability

Immigrant Preference Classifications

1. Family related I-130 Immediate relative petition based on a qualifying relationship (father, mother, brother, sister, son, daughter, spouse)
2. Employment sponsored I-140 immigrant petitions typically requiring labor certifications and a job offer by a U.S. employer:

a. Priority Workers

i. Aliens with Extraordinary Ability
ii. Outstanding Professors and Researchers

c. Skilled Workers and Professionals who hold Baccalaureate Degrees

 

Classes of Excludable Aliens

Despite eligibility for a given classification, an individual may still be ineligible to receive a visa and be excludable from admission to the United States. The U.S. Immigration and Nationality Act describes classes of excludable aliens. Exclusion grounds particularly affecting IMG physicians are as follows:

A. Unqualified Physicians

An alien who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the U.S. Secretary of Education (regardless of whether such school of medicine is in the U.S.) and who is coming to the USA principally to perform services as a member of the medical profession is excludable unless the alien (1) has passed Parts I and II of the NBME Examination (or an equivalent examination as determined by the Secretary of Health and Human Services, and (2) is competent in oral and written English. For purposes of this requirement, an alien who is a graduate of a medical school shall be considered to have passed Parts I and II of the NBME if the alien was fully and permanent licensed to practice medicine in a State of the U.S. on January 9, 1978, and was practicing medicine in a State on that date.

 

B. Two Year Home Country Presence Requirement

J-1 (Exchange Visitor) aliens admitted as Graduate Medical Trainees or who acquired such status in order to receive graduate medical education or training, are subject to the Two Year Home Country Presence Requirement unless a waiver of the two year requirement has been granted. Exchange visitors admitted to the USA as Exchange Visitors in other categories may also be excludable based on the skills list or the funding source of their program unless a waiver is granted.

C. Physicians seeking H-1B Status
An Alien who is a graduate of a medical school and is coming to the U.S. to perform services as a member of the medical profession may not be admitted as a non-immigrant H-1B alien unless:

 

1. The alien is coming pursuant to an invitation from a public or nonprofit educational or research institution or agency in the U.S. to teach or conduct research, or both, at or for such institution or agency, or

 

• The alien has passed the FLEX exam or an equivalent examination as determined by the Secretary of Health and Human Services (FLEX I + II = USMLE I + II + III), and

 

• The alien has competency in oral and written English or is a graduate of a school of medicine which is accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in the USA).

 

III Waivers of the Two Year Home Country Presence Requirement

 

Any Physician acquiring J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training, is obligated by Section 212 (e) of the Immigration and Nationality Act (INA) to return and be physically present in their home country for two years after completion of their J-1 (Exchange Visitor) program. A waiver can be requested, although a high percentage of waiver requests by Physicians are unsuccessful for a variety of reasons.

A. Request by an Interested United States Government Agency

If an Exchange Visitor is working on a project for or of interest to a United States Government Agency, that agency may determine that the visitor's continued stay in the U.S. is vital to one of its programs. The head of the agency, or a duly appointed designee, may request a waiver on behalf of the Exchange Visitor, stating that his or her continued stay in the USA is in the public interest. The application must be sent directly to the U.S. Department of State (DOS). If the DOS agrees with the agency that a waiver should be granted, it will forward a recommendation to the INS. The most common IGA's for Physicians are the United States Department of Agriculture (USDA) and the U.S. Department of Veterans Affairs.

 

B. Persecution

If the Exchange visitor can demonstrate that his or her departure from the United States would cause extreme hardship to his or her United States citizen or lawful Permanent resident spouse or child, s/he may apply for a waiver with the INS. If the INS makes a finding of exceptional hardship, it will forward the application to the DOS for a recommendation. Please note that mere separation from ones family is not considered to be sufficient to establish exceptional hardship. If the DOS determines that hardship outweighs the Department's program, policy, and foreign relations considerations, it will forward a favorable recommendation to the INS, which will then either grant or deny the waiver.

 

D. Request by a State Department of Health, or its Equivalent

Please note: The law permits only Medical Doctors to apply for a Waiver on this basis

 

On October 25, 1994 President Clinton signed into law Public Law 103-416 which established a new category of waivers of the Two Year Home Country Presence Requirement for medical doctors. Under that law, if foreign medical graduates:

 

• Demonstrate a bona fide offer of full-time employment at a health care facility in a designated health care professional shortage area;
• Agree to begin employment at the facility within 90 days of receiving a waiver; and
• Signs a contract to continue work at the health care facility for a total of not less than three years, then

 

the designated States Department of Health, or its equivalent, may request a waiver on behalf of the exchange visitor. The request letter to the DOS must state that his or her continued stay in the USA is in the public interest.

 

No more than 20 such applications may be granted for each state each federal fiscal year. If the DOS agrees with the State Department of Health, or its equivalent, that a waiver should be granted, it will forward a recommendation to the INS. This section applies to aliens admitted to the United States under Section 101(a)(15)(J) of the INA, or acquiring such status after admission to the U.S. before, on, or after October 25, 1994, and before June 1, 2002. This program is known as the CONRAD 20.

 

The following states currently participate in the Conrad 20 J-1 waiver program:

 

 

A Final Word About Waivers

The INS normally follows the DOS's recommendations when granting waivers on the above grounds, although it does have the authority to deny them regardless of the DOS's recommendation. Should a negative recommendation from the DOS be received, the INS is precluded from granting a waiver.

 

IV. New Developments

The Immigration Act of 1990 created the authority for the INS to waive the usual Department of Labor (DOL) certification of a job offer in some cases involving a "National Interest" of the United States. Until August of 1998, the leading case defining "National Interest" was Mississippi Phosphate, which set forth seven factors that could indicate a "National Interest," including "Improved health care" and "a request from an interested government agency."

In August 1998, a new controlling case known as "New York State Department of Transportation (NYSDOT) imposed a very restrictive definition of "National Interest Waiver." Under the NYSDOT interpretation, very few Physician waiver cases have been approved. A few, which were very strong and well documented have, however, been approved.

 

On November 12, 1999 President Clinton signed Public Law 106-95 into law. Section 5 of this law restores NIW's for Physicians who will commit to five years of employment in a designated health professions shortage area. Interim regulations implementing this new NIW program for Physicians were published by the INS on September 6, 2000.  The regulations become effective on October 6, 2000.  Any physician or employer wishing to pursue an NIW should contact Thomas Bassett & Associates for assistance. 

 

B. H-1B Cap Problems

C. Waiver Work Status

On October 4, 1999, the INS imposed a new rule mandating that only time in H-1B status will be considered as eligible for fulfilling the three year obligation for any IGA or CONRAD 20 State Department of Health case. This mandate for H-1B status has been explicitly in place for CONRAD 20 cases since 1997, however, this statement also appears to apply the H-1B status mandate to all IGA cases including USDA, DVA, and HHS. This means that if you enter the time in O-1 visa status, the time you work for the IGA (such as the DVA), will not be counted towards the three year service obligation.

 

Nurses

Immigration by Nurses is an area which has seen tremendous changes over recent years and it is an area likely to see additional legal changes. Additionally it is a field which often requires special planning. Thomas Bassett and Associates can assist you with planning a strategy enabling you to accomplish both your short term as well as your long term goals. The following information is offered as a starting point to assist you in gaining an overview of some of the concepts and opportunities available to nurses who wish to come to the United States on a temporary basis (as a non-immigrant) or as a U.S. permanent resident. Of particular interest to nurses are the classifications listed below, but there may be other opportunities available given the individual's facts or particular circumstances.

 

H-1A

The H-1A program was the one which was used by many nurses and their employers. It was originally fairly straight forward and was easy enough for many hospitals and clinics to use by themselves. Unfortunately, this program expired in late 1995. Special legislation in late 1995 allowed for H-1A extensions only; no new petitions were allowed. It also provided for the continuity of non-immigrant status for nurses who had a lapse in status between September 1995 and new law. There is no current activity of any sort with regard to this program. It officially ended on September 30, 1997..

H-1B
The H-1B classification has a minimum threshold requirement of a Bachelor's degree in order to perform the job. Since most nursing positions do not require a Bachelor's degree, most nursing positions do not qualify for the H1-B. For more information about the H-1B, click here.

TN
The TN is the visa status created as a result of the North American Free Trade Agreement. The TN status is limited to individuals who are nationals of either Canada or Mexico. One of the requirements of TN status is that the alien have a residence in their home country which they have no intention of abandoning. This may cause a potential conflicts for nurses who wish to obtain U.S. permanent residency, particularly those who commute daily.

TN status for nurses from Canada requires only a state license and offer letter from the hospital or clinic. Canadian nurses may request admission to the United States directly at a U.S. port of entry. (It is a good idea to also bring evidence of your academic credentials).

 

Prospective employers of nurses from Mexico must file a petition attaching copies of the evidence listed above with the INS. Once the INS approves the petition, the nurse must then obtain a visa from the American embassy or consulate in Mexico.

 

For more information about TN status, please click here.

 

Permanent Residency
Nurses generally immigrate to the United States using Schedule A Group I which allows pre-certification that there is a shortage of nurses in the United States. Under this classification, no labor certification is required.

 

New Law Updates

 

"Certification" is now required for all "health care workers."

When the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was passed, it created (in Section 343) a new ground of inadmissability aliens coming to the United States to work as nurses. The rule also affected individuals coming to work in other occupations as non-physician health care workers. Under the law, non-physician health care workers must present a "certificate" from the Commission on Graduates of Foreign Nursing Schools or an equivalent approved certificate.

 

The certificate verifies that the alien's education, training, licensing, and experience meets all applicable statutory and regulatory requirements under the visa classification for which they are seeking entry to the United States, are comparable for an American health-care worker of the same type; are authentic, and in the case of a license, is without any restrictions. In order to get the certificate the nurse or health care workers must prove that they have the appropriate level of competency in oral and written English. This competency requirement is met by obtaining an appropriate test score on a nationally recognized test approved for this purpose by the U.S. Secretary of Health and Human Services. (There is an exemption from the English language test for nurses and occupational therapists educated in the United States, the United Kingdom, Ireland, New Zealand, Australia, and Canada (except Quebec).) An additional requirement is that if the majority of states licensing the alien's profession recognize a test predicting the success on the profession's licensing or certification exam, then the alien must show that s/he has passed such a test or exam.

 

As of October 14,, 1998 the INS had published only interim regulations implementing the certification process and these only pertained to nurses and occupational therapists coming as permanent residents. These nurses must apply exclusively to the International Commission on Health Care Professions (ICHP), a division of CGFNS for a VisaScreen Certificate.

 

Other Health Care Professionals

Action has been suspended generally for other health care professionals such as physical therapists, speech language pathologists, medical technicians, and physician assistants. Occupational Therapists must apply for certification from the National Board for Certification in Occupational Therapy (NBCOT). With regard to the English examination, only the ETS examination is accepted by the NBCOT.

 

The INS memo says that CGFNS exam will no longer suffice for RNs (although there is some debate about this for those who interpret the text of the statute differently and seek to challenge this interpretation in court).

 

Thus, adjustment of status (AOS) applicants must have the CGFNS, however, certification may be given without the exam under certain circumstances. CGFNS is still waffling on how to issue "certification," especially to Canadians. Meanwhile, many U.S. Consular Officers are refusing to issue immigrant visas until the INS, the U.S. Department of Health and Human Services (HHS), and CGFNS issue regulations implementing the health care worker certification requirement. Adjustment of status applicants who do not have "certification" will have their application of adjustment of status held in abeyance.

 

The Department of State has decided to stop issuing immigrant visas to all non-physician health care workers. Some consulates are issuing immigrant visas to RN's who have CGFNS certification. It is important to note, however, that any immigrant visa issued after October 1, which has not been revoked, may be voided by the inspecting officer at the U.S. Port of Entry and could result in exclusion. This can have serious ramifications. In these situations it is best to withdraw the application for admission and to contact an immigration attorney.

 

The INS and DOS have agreed, however, to waive the certification requirement for aliens coming to the United States as non-immigrant health care workers until such time as a final rule implementing section 343 in full is published. Those aliens coming to the United States to perform services in non-clinical health care occupations such as medical teachers, researchers, managers of health care facilities and insurance consultants are not required to seek a certificate. Those aliens who have applied for immigrant benefits on the basis of a family sponsored petition, regardless of their ultimate professional goal are also exempt.

In this section see also: