One of the more controversial and complicated areas with which immigration attorneys have to deal is in advising foreign medical graduates (“FMGs”)seeking temporary work visas in the United States. The laws governing this subject have changed a number of times in recent years and the medical profession imposes many of its own requirements which must be met before work in the US is permitted.
As the law now stands, there are two types of nonimmigrant visas which are available to FMGs – the H-1B visa for specialty occupations and the J-1 exchange visitor visa.
H-1B visas are granted for up to three years and may be extended for up to three more years. After these six years, the H-1B is required to leave the US for a year. A key benefit of the H-1B visa is that the doctrine of dual intent applies and an outstanding petition for permanent residency is not a ground for denying the visa. If the FMG is coming to the US to teach or to perform research and only incidental patient care is involved, the FMG will have to show that he/she has received a medical education and is licensed in his/her home country and that an appropriate license has been received by the state where the applicant will be working if patient care will be performed. The other H-1B option is open to persons seeking to engage in a clinical practice or engage in graduate medical training. Such persons are required to pass 1) the Federation Licensing Examination (the FLEX) or part 3 of the US Medical Licensing Examination (USMLE) and 2) has passed the English Language Test given in conjunction with the USMLE or the Foreign Medical Graduate Examination in the Medical Sciences (FMGEMS).
Until early 1992, only persons accepting teaching and research positions could pursue the H-1B visa (although incidental patient care was permitted). That changed when Congress lifted the bar on granting H-1B visas to FMGs seeking to engage in a clinical practice or graduate medical training. Last July, the INS attempted to reimpose the prior rule limiting H-1Bs only to teachers or researchers on the grounds that Congress did not intend to permit physicians to choose between J visas and H visas. The House of Representatives committee overseeing the INS did not agree and the INS appears to have backed off its proposal. So the more liberal rules allowing H-1B visas for physicians still remain.
The other nonimmigrant option available to physicians, as noted above, is the J-1 Exchange Visitor’s visa. This option is available to persons seeking to teach, research or train in the US. FMGs involved in patient care are subject to a requirement that the FMG return to his or her home country for at least two years before he or she is eligible to change to H, L, or O nonimmigrant status, or for permanent residence. To avoid the two year requirement, an FMG must seek a waiver on the ground that the home residency requirement (the “HRR”) would result in exceptional hardship or persecution or that an interested government agency has formally requested the waiver. The hardship and persecution tests have proven to be extremely difficult to pass. Even marriage to a US citizen and the existence of US citizen children are not necessarily enough to meet the hardship standard. And persons seeking to show persecution will normally have an easier time simply filing for asylum.
The interested government agency option has proven popular in recent years as many government agencies have used the HRR waiver in order to fill needed primary and critical care positions in rural and impoverished areas. A number of agencies now grant such waivers. The Department of Health and Human Services, the Department of Veterans Affairs, the Appalachian Regional Commission, the US Department of Agriculture and the Department of Housing and Urban Development are the agencies which most often issue waiver letters. There are no uniform procedures for applying for waiver letters with these agencies. Each has there own review board and there own application rules. Some require that the FMG agree to perform primary health care in a geographic area which is underserved or that the FMG be working in a program where the FMG’s presence is critical to the program’s future. Others focus on the importance of medical research. Some require evidence that recruitment efforts for the position have been unsuccessful. Others require minimum time commitments. A new development in the HRR area is that each individual state can now act as “interested government agencies” for up to twenty positions per year. For a state to seek a waiver, the state’s department of public health must show that the FMG will commit to three years, the FMG will begin work within 90 days of being granted the waiver, the FMG will work in a Health Profession Shortage Area and the FMG has received a no objection letter from his or her home country’s government (if the FMG had a contract with the home government requiring his or her return). The new rule allowing states to act recommend waivers will expire on June 1st of next year.
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