Visas for Health Care Workers:
The attorneys at Marty & Ellis, LLP have extensive experience representing medical care providers, companies and employees in health care fields, including preparing petitions and applications on behalf of doctors, nurses, acupuncturists, researchers, biotech workers, and pharmacists. Marty & Ellis also works closely with human resources professionals and other corporate executives to develop strategies and policies that facilitate the hiring and promoting of international talent.
The following nonimmigrant categories are of special interest to health care workers:
J-1: International Medical Graduates (IMGs), or physicians who have graduated from schools outside of the United States or Canada, must have at least four years of medical school qualified under the Foundation for Advancement of International Medical Research and Education (FAIMER) as well as complete a United States-accredited residency or fellowship program in order to become U.S. licensed physicians. Therefore, in order to complete this requisite work in the U.S., many IMGs enter the U.S. on a J-1 exchange visitor visa, valid for the duration of the training. However, it is important to note that the J-1 does not allow the IMG to work outside of the approved J-1 training or fellowship program and, moreover, many IMGs on the J-1 are required to return to their home country for two years prior to changing to another visa category or applying for U.S. permanent resident status.
For those IMGs required to return to their home country for two years on the J-1, applying for a waiver may be possible under the Conrad 30 program, which allows each State’s Department of Health to sponsor up to 30 IMGs each year who will work in government-designated medically underserved areas for at least three years. Of the 30 IMGs sponsored for J-1 waivers under the Conrad 30 program, 10 FLEX waivers are available for physicians to serve individuals in neighboring underserved communities instead of the medically underserved areas.
H-1B: The IMGs mentioned in the J-1 section above are also eligible to come to the U.S. on an H-1B visa to participate in the requisite training or fellowship program, assuming that they either get an H-1B prior to the maximum allotment (known as the H-1B cap) being reached or that they work for a cap-exempt employer, such as an institution of higher education, a related or affiliated non-profit entity, a non-profit research organization, or a government research organization.
Regarding nurses, on July 11, 2014, U.S. Citizenship & Immigration Services (USCIS) issued a policy memorandum providing guidance on when nurses are eligible for H-1B visas. To summarize, while registered nurses are not ordinarily qualified for the H-1B classification, USCIS acknowledges that there are categories of nurses who may be exceptions to this general rule, including certain types of registered nurses who focus on specific areas (such as critical care nurses, oncology nurses, and pediatric nurses, to name a few of those listed in the memorandum) or some certified Advanced Practice Registered Nurses, including Certified Nurse Midwives, Certified Clinical Nurse Specialists, Certified Nurse Practitioners, and Certified Registered Nurse Anesthetists. To qualify for the H-1B, all certified nurses must have met state licensing requirements. This memorandum is available at http://www.uscis.gov/sites/default/files/files/nativedocuments/Adjudication_Policy_Memo_Nurse_7_11_2014.pdf.
For an overview of the H-1B process and requirements, please click here.
O-1: The nonimmigrant O-1 classification can be used for researchers and scientists in the top of their field. For an overview of the requirements for this classification, please click here.
TN: The TN nonimmigrant visa is available to qualified Canadian and Mexican nationals and many health care fields are included on the list of occupations for the TN classification. For an overview of the TN requirements, please click here.
For those health care workers interested in the green card, there are a number of possibilities, including:
EB-1 Extraordinary Ability or Outstanding Researcher: There are two first preference employment categories of special interest to researchers and scientists as well as other health care workers in the very top of their field. One of these is for extraordinary ability (which does not require a petitioner) and the other is as an outstanding researcher (which requires a petitioner). For an overview of these immigrant visa categories, please click here.
PERM Schedule A: Ordinarily, under the Program Electronic Review Management (PERM) system, employers must demonstrate through advertising that there are no qualified U.S. workers available to fill a particular position before they can sponsor a foreign worker for U.S. permanent resident status. For an overview of the labor certification process under PERM, please click here. Further, the employer must show that it will pay the prevailing wage for that position. However, for occupations in which the U.S. Department of Labor recognizes that there are shortages in the U.S., the labor market may not need to be tested in order for an employer to sponsor a foreign worker for U.S. permanent resident status under PERM (although offering a salary that meets or exceeds the prevailing wage will still need to be demonstrated, which may be determined in some cases by a Collective Bargaining Agreement). This is known as a Schedule A exception. Professional nurses and physical therapists are both occupations that have been identified for Schedule A as have aliens of exceptional ability in the sciences, though there are a number of requirements that must be met for Schedule A. For those who are applying under the exceptional ability in the sciences Schedule A exception, the standards for meeting exceptional ability are easier to meet than those for extraordinary ability and outstanding researcher petitions and so this could be a viable option for researchers and scientists not quite meeting the EB-1 level of criteria.
EB-2 National Interest Waiver: Another exception to labor certification, petitioning for U.S. permanent resident status through a national interest waiver is also a possibility for health care workers meeting the criteria. For an overview of the National Interest Waiver, please click here.
Applying for nonimmigrant and immigrant visas as a health care worker is complex given the special rules and categories as outlined above. Because the process is so individualized depending on the foreign health care worker’s field and credentials as well as the offered position, meeting with an immigration attorney is paramount to understand the best options. Please contact us at info@immigratesmarter.com to set up a consultation or if you have questions.
The attorneys at Marty & Ellis, LLP have extensive experience representing medical care providers, companies and employees in health care fields, including preparing petitions and applications on behalf of doctors, nurses, acupuncturists, researchers, biotech workers, and pharmacists. Marty & Ellis also works closely with human resources professionals and other corporate executives to develop strategies and policies that facilitate the hiring and promoting of international talent.
The following nonimmigrant categories are of special interest to health care workers:
J-1: International Medical Graduates (IMGs), or physicians who have graduated from schools outside of the United States or Canada, must have at least four years of medical school qualified under the Foundation for Advancement of International Medical Research and Education (FAIMER) as well as complete a United States-accredited residency or fellowship program in order to become U.S. licensed physicians. Therefore, in order to complete this requisite work in the U.S., many IMGs enter the U.S. on a J-1 exchange visitor visa, valid for the duration of the training. However, it is important to note that the J-1 does not allow the IMG to work outside of the approved J-1 training or fellowship program and, moreover, many IMGs on the J-1 are required to return to their home country for two years prior to changing to another visa category or applying for U.S. permanent resident status.
For those IMGs required to return to their home country for two years on the J-1, applying for a waiver may be possible under the Conrad 30 program, which allows each State’s Department of Health to sponsor up to 30 IMGs each year who will work in government-designated medically underserved areas for at least three years. Of the 30 IMGs sponsored for J-1 waivers under the Conrad 30 program, 10 FLEX waivers are available for physicians to serve individuals in neighboring underserved communities instead of the medically underserved areas.
H-1B: The IMGs mentioned in the J-1 section above are also eligible to come to the U.S. on an H-1B visa to participate in the requisite training or fellowship program, assuming that they either get an H-1B prior to the maximum allotment (known as the H-1B cap) being reached or that they work for a cap-exempt employer, such as an institution of higher education, a related or affiliated non-profit entity, a non-profit research organization, or a government research organization.
Regarding nurses, on July 11, 2014, U.S. Citizenship & Immigration Services (USCIS) issued a policy memorandum providing guidance on when nurses are eligible for H-1B visas. To summarize, while registered nurses are not ordinarily qualified for the H-1B classification, USCIS acknowledges that there are categories of nurses who may be exceptions to this general rule, including certain types of registered nurses who focus on specific areas (such as critical care nurses, oncology nurses, and pediatric nurses, to name a few of those listed in the memorandum) or some certified Advanced Practice Registered Nurses, including Certified Nurse Midwives, Certified Clinical Nurse Specialists, Certified Nurse Practitioners, and Certified Registered Nurse Anesthetists. To qualify for the H-1B, all certified nurses must have met state licensing requirements. This memorandum is available at http://www.uscis.gov/sites/default/files/files/nativedocuments/Adjudication_Policy_Memo_Nurse_7_11_2014.pdf.
For an overview of the H-1B process and requirements, please click here.
O-1: The nonimmigrant O-1 classification can be used for researchers and scientists in the top of their field. For an overview of the requirements for this classification, please click here.
TN: The TN nonimmigrant visa is available to qualified Canadian and Mexican nationals and many health care fields are included on the list of occupations for the TN classification. For an overview of the TN requirements, please click here.
For those health care workers interested in the green card, there are a number of possibilities, including:
EB-1 Extraordinary Ability or Outstanding Researcher: There are two first preference employment categories of special interest to researchers and scientists as well as other health care workers in the very top of their field. One of these is for extraordinary ability (which does not require a petitioner) and the other is as an outstanding researcher (which requires a petitioner). For an overview of these immigrant visa categories, please click here.
PERM Schedule A: Ordinarily, under the Program Electronic Review Management (PERM) system, employers must demonstrate through advertising that there are no qualified U.S. workers available to fill a particular position before they can sponsor a foreign worker for U.S. permanent resident status. For an overview of the labor certification process under PERM, please click here. Further, the employer must show that it will pay the prevailing wage for that position. However, for occupations in which the U.S. Department of Labor recognizes that there are shortages in the U.S., the labor market may not need to be tested in order for an employer to sponsor a foreign worker for U.S. permanent resident status under PERM (although offering a salary that meets or exceeds the prevailing wage will still need to be demonstrated, which may be determined in some cases by a Collective Bargaining Agreement). This is known as a Schedule A exception. Professional nurses and physical therapists are both occupations that have been identified for Schedule A as have aliens of exceptional ability in the sciences, though there are a number of requirements that must be met for Schedule A. For those who are applying under the exceptional ability in the sciences Schedule A exception, the standards for meeting exceptional ability are easier to meet than those for extraordinary ability and outstanding researcher petitions and so this could be a viable option for researchers and scientists not quite meeting the EB-1 level of criteria.
EB-2 National Interest Waiver: Another exception to labor certification, petitioning for U.S. permanent resident status through a national interest waiver is also a possibility for health care workers meeting the criteria. For an overview of the National Interest Waiver, please click here.
Applying for nonimmigrant and immigrant visas as a health care worker is complex given the special rules and categories as outlined above. Because the process is so individualized depending on the foreign health care worker’s field and credentials as well as the offered position, meeting with an immigration attorney is paramount to understand the best options. Please contact us at info@immigratesmarter.com to set up a consultation or if you have questions.