A foreign medical doctor must be licensed in the geographical area where s/he wishes to practice as part of the essential requirements for H1B. Exceptions can be granted if the medical doctor will be practicing in facilities run by Department of Veterans Affairs (DVA) for former members of the US military or in an area designated as underserved by the Health and Human Services Department (HHS).
The eligible foreign doctor must have graduated from medical school and should have passed either the Federal Licensure Examination (FLEX) or the equivalent U.S. Medical Licensing Examination (USMLE). The doctor must pass all of the three-step USMLE examine before s/he is considered for H1-B and get letters of reference. The USCIS allows changes of status from one category (J-1 to H1B, for example) if the doctor fulfils all other requirements. Although, in some cases, an O-1 (visa for people with extraordinary ability) can be a viable alternative option, the USCIS (the United States Bureau of Citizenship and Immigration Services) as well as employers have become increasingly reluctant to process O-1or the transition to Permanent Residency.
Doctors seeking employment in the U.S. should make their plans before the completion of medical school, including obtaining acceptable licenses. With well-crafted plan, information, and proper legal advice, foreign medical doctors can secure gainful employment in the U.S. relatively smoothly. The options for a foreign doctor are much better in medically underserved or regions of the United States that lack adequate health professionals.
How do I qualify?
You will qualify for employment as a foreign doctor if you satisfy the following requirements.
You must have:
- Authorization to practice medicine from the state in you wish to practice
- A license to practice medicine in a foreign country OR you are a medical school graduate of an educational institution in the U.S. or a foreign country.
Doctors Who Treat Patients
In addition to the general requirements, medical doctors who wish to treat patients must:
- Pass an examination approved by the Health and Human Services (HHS).
- Have acquired satisfactory command of the English language (determined by passing the test of English proficiency administered by the Educational Commission for Foreign Medical Graduates). English language proficiency requirements will be waived only for doctors who graduated from a medical school accredited by the U.S. Department of Education.
Doctors Engaged in Teaching and Research
Foreign doctors who wish to teach or conduct research must:
- Fully engage in teaching and research at a public, non-profit, or private educational or research institution. The are
- Not perform patient care except when such activity is a part of the teaching or research.
Additional Requirements for All Categories of Foreign Trained Doctors
As a foreign doctor or International Medical Graduate (IMG), you are required to complete a residency program in the United States before you obtaining a license from the US state where you would like to practice. Many foreign trained doctors enter the United States as nonimmigrant exchange visitors with a J-1 visa to enroll in a residency program. As soon as their U.S. residency is complete, however, foreign trained doctors must return to their countries of citizenship or last residence for two years, except when such requirements are waived with the authorization of the USCIS. After completing their residency, foreign trained doctors can return to the U.S. as temporary worker with H or L visa or as Permanent Resident.
The foreign trained doctor who wishes to change his or her status from J-1 to H1B status after acquiring a J-1 waiver must change to H1B status within 90 days of getting the waiver approval. If the J-1 visa holder overstays the 30-day grace period, that means s/he will have to apply for reentry at a US consulate overseas (country of citizenship or last residence). One of the preferred methods for foreign doctors to benefit from the J-1 waiver program in order to stay in the United States is if they agree to provide primary care services in an underserved area. If you decide to get a waiver, you need to contact a group that can act as an “interested government agency” on your behalf. You should also contact your state government’s Department of Public Health because each state is allowed to request up to 30 waivers a year for J-1 doctors. However, you should be aware if your state is a participant of the waiver program as some US states DO NOT participate.
What is the National Interest Waiver for physicians in underserved areas?
According to the USCIS, the national interest waiver for physicians in underserved areas relieves the employer or the doctor filing with the intent to start a private practice from the labor certification process. In order to be eligible, the applicant must be:
- A petitioner (employer) requesting a national interest waiver on behalf of a qualified foreign doctor, or
- An foreign doctor self-petitioning for second preference classification, based on medical service in an area designated by the Health and Human Services Department (HHS) or a facility run by the Department of Veterans Affairs (VA) facility.
You must, however, meet all eligibility requirements for this immigrant classification in order to be eligible for the national interest waiver.
Document Requirements for National Interest Waiver for Physicians in Underserved Areas
The petitioner or self-petitioner must submit the following proofs along with Form I-140. For physicians planning to divide the practice of full-time clinical medicine between more than one underserved area, documented proofs listed below must be submitted for EACH area of intended practice:
- As Employee: If the physician will be hired by a US organization, a full-time employment contract must be submitted for the required period of clinical medical practice, or an employment commitment letter from a VA facility. You should note that the contract must be issued and dated within 6 months prior to the date the petition is filed.
- Private Practice: the physician’s sworn statement committing to the full-time practice of clinical medicine for the required period. The statement should describe the steps the physician has taken or intends to actually take to set up the practice.
- Evidence showing the physician will provide full-time clinical medical service. These include:
a. Evidence demonstrating the foreign doctor will work in a geographical area or areas in the United States designated by the Secretary of HHS as having a shortage of health care professionals and in a medical specialty that is within the scope of the Secretary’s designation for the geographical area or areas; or
b. Evidence demonstrating the foreign doctor will work in a health facility under the jurisdiction of the Secretary of VA.
- A letter from a Federal agency or the department of public health (or equivalent) of a State (including territories of the United States and the District of Columbia). The letter must be issued and dated within 6 months prior to the date on which the petition is filed. The letter must, in addition, attest that the foreign doctor’s work is or will be in the public interest. Attestation letters can be in the form of:
a. Any attestation from a Federal agency reflecting the agency’s knowledge of the foreign doctor’s qualifications. The attestation should also establish agency’s background in making determinations on matters involving medical affairs in order to support the foreign doctor’s service is or will be in the public interest.
b. An attestation from the public health department of a State, United States territory, or the District of Columbia reflecting that the agency has authority over the place where the alien physician intends to practice clinical medicine. If the alien physician intends to practice clinical medicine in more than one underserved area, attestations from each intended area of practice must be included. Attestations from the public health department of a State, United States territory, or the District of Columbia without legal over the place in which the foreign doctor intends to practice clinical medicine will be NOT be considered.
- Evidence that the foreign doctor meets requirements to be admitted to the United States
- If applicable, evidence of the Service-issued waivers of the requirements if the foreign doctor has been a J-1 nonimmigrant receiving medical training within the United States.
Time Limit for Required Service
1. If the physician already has authorization to accept employment (other than as a J-1 exchange alien or foreigner), the beneficiary doctor must complete an a total of 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date of approval of the Form I-140.
2. If the physician must obtain authorization to accept employment before the physician may lawfully begin working, the physician must complete the total 5 years of qualifying full-time clinical practice during the 6-year period beginning on the date the Service issues the necessary employment authorization document.
How do I apply?
Generally, you are expected to conduct the job search (including J-1) on your own by directly applying for a position at an organization that provides health services. These employers have specific requirement that you have to fulfill in addition to those listed above. There are resources that you may look up in your search for employment including The New England Journal of Medicine, JAMA: The Journal of the American Medical Association, or the physicians’ section of The New York Times. If you are interested in specialist positions, it is in your best interest to consult specialist professional journals. Once the employing organization decided to hire you, it will file a petition of sponsorship on your behalf. Filing a self-petition is also possible but you may want to accomplish this in consultation with a professional legal advisor that specializes in US immigration law.
Can I bring my family?
You are allowed to bring your spouse and unmarried children under the age of 21 with you or at a later date after obtaining your own H1-B visa. The visa category for your dependants and family is H-4. The H-4 visa for your family members will be valid for the same duration as your H-1 visa. They cannot, however, take up any form of employment while in the H-4 category. This limitation can only be removed with a special permission granted by the USCIS. Dependants holding an H-4 visa are authorized to attend school while remaining in the H-4 category but are not entitled for any financial aid or the one-year Optional Practical Training (OPT) after completion of the program.
H-4 visa holders can qualify for alternative nonimmigrant visa categories like the F-1 student visa if they are to obtain admission at an academic institution. If a spouse whose employer has also obtained approval of an H-1B petition to employ him or her can still be considered for other visa categories. If the principal H-1B holder changes jobs and as long as there is no break in the validity of H-1B visa, there is no need for separate petition to be filed. H-4 visa holder need not take any action as long he/she accompanies the H-1B visa holder.
What are the documents required for H-4 (Dependants and Family Visa)?
The required documents for H-4 visa abroad or H-4 status for a spouse as well as children, generally, are the H-1B approval notice of the Beneficiary, the marriage certificate, and birth certificates for children. It may be helpful, however, to compile all of the following:
- Original Passport of H-4 visa applicant
- I-797form (H-1B approval notice)
- Letter of employment from the company you work for with salary stub
- A letter addressed to the Consulate in favor of your spouse’s visa
- Copy of relevant pages of passport of H1B spouse (Notarized)
- Copy of the marriage certificate (Notarized and translated into English)
- Bank statement to prove you are capable of supporting your spouse
- Recent paychecks/stubs
- Wedding photographs and a wedding invitation
- I-94 (Arrival and Departure Form Attached to Passport), if the person had entered the US before
- Visa fee
Caution! Applicants for H-1B or H-4 should never mail original documents because, in most cases, they will not be returned. However, the applicant should keep the originals ready in case a consular official asks to verify and crosscheck them with copies submitted during the visa interview.
What are the filing fees for H-1B?
The fees for H-1B visa include:
- $190 for base filing fee;
- $500 for fraud prevention and detection fee;
- $750 for an additional fee if the petitioner employs a total of no more than 25 full-time equivalent employees in the U.S. ($1500 for an additional fee if the petitioner employs more than 25 employees)
If you and your employer chose premium processing, there is $1,000 additional premium processing fee. The Premium Processing Program for H-1B petitions was launched on July 30, 2001, which entails the USCIS will approve the petition, deny the petition, or make a request for additional evidence within 15 calendar days for an additional fee of $1,000. The USCIS will refund the $1000 fee if it does not make a decision on the case within the required 15-calendar day period.
The additional fees of $750 or $1,500 can be exempted only when:
- The employer is an institution of higher education
- The employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education. Nonprofit organizations or entities in this category include such establishments as hospitals and medical research institutions
- The employer is a nonprofit research organization or governmental research organization primarily engaged in basic and/or applied research
- The employer is a primary or secondary education establishment
- The employer is a nonprofit organization engaged in an established curriculum-related clinical training or has registered students
- The petition is a second or subsequent request for an extension of stay filed by the same employer
Caution! No exemptions are made for the above-mentioned first two fees of $190 and $500
What are the obligations of employers?
The employer must submit to the Department of Labor (DOL) a Labor Condition Application (LCA) by filing Form ETA 9035 and fulfill the required conditions in relation to hiring non-American professionals residing outside of the United States. In addition, the employer must:
- Agree to pay the foreign doctor the higher of the “prevailing wage determination” (PWD) requirements as outlined by the DOL or the “actual wage” fixed by the organization appropriate for the position.
- Ensure proper working conditions to all employees without any discrimination. The physician’s employer must attest in the LCA application to working conditions and must comply with state-approved standards for working conditions and disclosure.
- File an H-1B petition with the appropriate USCIS regional office. The employer must clearly indicate that the foreign doctor meets immigration law standards and that it can pay the appropriate wage.
- Provide notice of the LCA to its employees AND also maintain Public Access file showing that the organization is complying with the conditions of LCA.
Documents that demonstrate the foreign doctor’s education, licenses, and compliance with examination requirements and regulations must accompany the petition.
The USCIS may take a considerable time to process applications for O1, and similar visas. The employer must be aware of such constraints and take necessary precautions to avoid hardships affecting employees. The organization may also want to clearly communicate to the employee regarding payment of costs for USCIS filing fees as well legal fees incurred when seeking a work visa or green card and other such matters involving financial commitment. Institutions sponsoring J-1 visa holders must ensure that federally mandated health care and repatriation insurance is paid by the individuals.
What is the duration of the H-1B visa and how do I renew my H-1B visa?
Initially an H-1B is issued for a period not exceeding 3 years. The H-1B visa can be extended for another three years if you are in the same job or in another job with approved petition. A new visa stamp will not be required if the H-1B visa holder never leaves the US during the six-year period but s/he should apply only for renewal. If the H-1B worker has to travel abroad after expiration of his her original H-1B visa, a new visa must be obtained to enable him/her to re-enter the US. It is mandatory that all initial H-1B visas must be issued at a consular office abroad. The same rule applies for petitions for change of status too.
An H-1 B worker may have his or her H-1B visa renewed at the Visa Office of the State Department, Washington D.C. The following documents should be submitted along with the application for renewal:
- Valid passport (at least six months before expiration) for the principal and for each family member. The passport must contain a previous H-1B visa, and that visa must have no less than 60 days of remaining validity, nor have expired more than one year ago. There should be adequate unmarked pages in the passport for each family member.
- The original Form I-94, issued when the applicant last entered the US for the principal and each family member.
- Form I-797 (the original USCIS approval notice) that states the applicant’s current employer and shows the approved extension of temporary US stay.
- Letter of support from the employer indicating the nature of job, duties of the employee, and a list of dependents. This should be addressed to the Visa Office, Department of State.
- Properly executed, typed Form DS-156 and a passport size photo for each visa applicant regardless of age.
- If the spouse and/or dependent children are applying for visas separately from the principal H-1B holder, certified copies of the principal H-1B holder’s visa and valid I-94.
- Filing fee
- Additional $ 65 fee for machine-readable visa.
- Self-addressed and stamped envelopes for returning the passports.
The maximum duration of stay in H status is six years. In the case of a person who has had more than one type of H status, that is, L1 or H 4 and actually stayed in US with all these different statuses, the total duration of his/her stay is calculated on the basis the 6-year stay allowed.
Note! In the cases that the H-1B work in US is seasonal or intermittent, or the H-1B holder spends six months or less per year in the US, the six-year limit will not apply in such cases.
How do I qualify for the H-1B seventh-year extension?
An H-1B holder who is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting for the new quota to apply for an adjustment of status, may file for extensions of H-1B status beyond the six-year period until his/her adjustment of status application has been determined. However, USCIS has the discretion to approve or deny such applications and, therefore, the extension is not guaranteed.
A beneficiary of EB-1 and NIW may file the extension of his H-1B beyond the six-year limit if the request for extension is filed over 365 days and is either pending or approved. A beneficiary of EB-3 and EB-2 (other than a national interest waiver) may apply to extend his H-1B status beyond the six-year limit if the labor certification was filed more than 365 days.
How do I maintain my H-1B status and visa?
More than one employer may employ H-1B nonimmigrant category workers concurrently. But if an H-1B worker wishes to change employers and continue to maintain his or her current H-1B status, the situation is treated as an extension of stay. The second employer should file the petition well in advance if the organization had not done this already. However, in such cases, since the beneficiary had already been documented to have credentials for H-1B visa, less extensive documentation may be necessary to establish his or her continuing eligibility.
It is possible to obtain a seventh-year extension for some categories of H-1B visa holders. They are as follows:
· An H-1B holder who is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting for the new quota to apply for a modification of status, may apply to the USCIS for extension(s) of H-1B status beyond the six-year period until a decision on his/her adjustment of status application is made. Such extensions are not guaranteed, however, and are issued at the sole discretion of USCIS
· A beneficiary of EB-1 and NIW may file the extension of his/her H-1B visa beyond the six-year limit if the application for immigration has been filed over 365 days and it is pending.
· A beneficiary of EB-3 and EB-2 (other than a national interest waiver) may also apply for extension of his/her H-1B status beyond the six-year limit provided the labor certification was filed more than 365 days before.
Are there any limitations on H-1B (Quota and Other Limitations)?
· H-1B is granted for a maximum of 6 years. The individual must depart the U.S. for at least one year before qualifying again for another H-1B status.
· There is annual numerical limit for H-1B visas issued. However, applications for extensions of H-1B status, concurrent employment, change of employers, applications for physicians who received J visa waivers are not subject to the cap.
· Spouse and children are not allowed to work, unless and otherwise authorized by the USCIS.
· No automatic conversion to permanent residence status is permitted. H-1B status is independent of the green card application.
· H1B visa status depends on continued employment. In other words, the employment is at will. Either the employer or the immigrant may terminate the employment at any time for any or without any reasons being assigned. As soon as the employment is terminated or you give up your job, your visa becomes invalid. In such cases, a grace period of only 10 days is given.
Can I change my status to lawful permanent resident?
Yes, you can apply to adjust your status to that of lawful permanent resident. In order to obtain a Green Card, your employer must express that it is unable to find a US doctor (American citizen) who to fill in the position. The employer and foreign doctor should follow the following steps:
- The employer must apply for alien labor certification from the U.S. Department of Labor. The employer must demonstrate that there are no U.S. doctors qualified for the specific job of the foreign-born physician currently in the post. Foreign doctors who wish to practice in medically underserved areas for at least five years can petition to bypass the labor certification requirement.
- The employer must submit a visa petition to the USCIS, stating which permanent residency category the physician qualifies for and that the foreign doctor’s salary and employment prospects are in good standing.
- The foreign doctor himself or herself must apply for permanent residency at a USCIS office. This process is known as ‘adjustment of status.’ Applications for employment authorization and ‘advance parole’ (travel documents) for the foreign doctor and his family can also be filed at this time.