The White House Visa Modernization Report and Foreign Physicians

Posted on: July 17th, 2015
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by Adam Cohen

I have been posting  about the White House’s recent visa modernization report, as have some of my colleagues.  Greg Siskind, for example, provides a helpful and thorough scorecard to assess the extent to which the White House did or did not consider public feedback.

Basically, the White House listened to us for a little while and then tuned out. For example, in the area of physician immigration, there was a failure on the part of the administration to consider much of the public feedback, including several proposals that would have helped foreign physicians, as well as the recruiters that seek them and the employers that hire them.  With the severe physician shortage in this country, which will only grow worse in the coming years, physician immigration must become more streamlined with the elimination of outdated roadblocks.

I would be remiss, however, not to mention some of the positive news coming out of this report.  Foreign physicians and their employers should take note of the following:

  • Clarification will be coming in the PERM and H-1B contexts as to when porting from employer to employer is permitted.
  • There is a proposed change to allow I-140 petitions to survive even if an employer attempts to revoke them or the employer goes out of business.
  • The White House wishes for there to be PERM modifications to make the program more user-friendly and faster. As of now, PERMs take about 6 months to prepare and about 6-8 months to be adjudicated. If there is an audit, it will take much longer. The process is completely unforgiving as well, with minor errors resulting in denials and a huge waste of time. Changes would be most welcome.
  • USCIS intends to clarify when owners of businesses can petition for H-1Bs for themselves. This would be excellent, because many physicians have their own practices, and self-employment presents a difficult roadblock to receipt of an H-1B.
  • There is discussion of a grace period for workers who are terminated. H-1B nonimmigrants currently receive no grace period, and termination without notice can immediately eliminate their valid status. A grace period is a fair and reasonable measure.
  • There is discussion of the “Known Employer” initiative, which was previously announced on January 8, 2015.  It begins with a pilot program to streamline H-1B and L-1 processing for U.S. employers meeting strict criteria.  Under the pilot, USCIS will allow petitioners the option to file a petition with USCIS to pre-establish certain requirements related to the employer.  USCIS will analyze the bona fides of the employer’s business, the nature of the job offered, the job requirements, etc.  This is certainly an exciting proposal.
  • Finally, USCIS will clarify which H-1B nonimmigrations are exempt from the statutory cap to ensure that those nonimmigrants who are contributing to U.S. research and the education of Americans may remain in the United States.  This is rather vague, so time will tell precisely what the White House means by this goal.