Permanent Residence Options for Foreign Physicians: What's the Prognosis?

When studying to become physicians, medical students learn how to deal with patients. They also become well practiced in exercising patience.

Physicians must complete four years of medical school training, followed by three to eight years of internship and residency, depending on the particular area of specialization. Foreign physicians interested in pursuing permanent resident (so-called "green card") status in the United States, however, must demonstrate an extra measure of patience: On top of their years of training, they often must wait several more years for final approval of their highly desired immigration status.

Foreign physicians endure this marathon for a variety of reasons: the permanent opportunity to practice medicine at some of the world's most advanced medical facilities; higher financial compensation compared to their medical counterparts in most other countries; the desire to provide educational and lifestyle advantages to their families; and so forth. For many talented and persistent individuals from across the globe, the dual "status" of being a medical doctor and a U.S. permanent resident is still a ticket that sells.

But what are the permanent residence options available to foreign physicians, and what is the prognosis for success with each? This article addresses those two questions for all foreign physicians, with added emphasis on medical doctors serving in health professional shortage areas.

Overview of the Permanent Residence Process

In order to understand the specific permanent residence options available to foreign physicians, a brief overview of the employment-based permanent residence process may be helpful. All foreign nationals pursuing permanent residence in the U.S. based on employment fall under one of five employment-based preference categories. In fact, though, the vast majority fit under the first three categories, often referred to by the shorthand terms: EB-1, EB-2 and EB-3. Classification in the EB-1, EB-2 or EB-3 category is established through the filing of the I-140 Immigrant Visa Petition with U.S. Citizenship and Immigration Services (USCIS).

For all EB-3 cases, and all EB-2 cases except those filed with a request for a "National Interest Waiver" (NIW), an approved labor certification application is a prerequisite to filing the I-140 petition. Under current procedures, an employer electronically files a Form ETA-9089 labor certification application under the "Program Electronic Review Management" (PERM) system with the Department of Labor (DOL). Foreign nationals in the EB-1 category and those with EB-2 NIW cases can avoid labor certification entirely and go directly to the I-140 stage of the process.

The last step in the permanent residence process for all employment-based cases is for the foreign national and any family members to file an I-485 Application to Adjust Status with USCIS or to obtain an immigrant visa at a U.S. consulate abroad (a process known as "consular processing").

In recent years, the number of foreign nationals seeking permanent residence through employment has far outstripped the number of visas available under the U.S. government's annual allotment. As a result of this classic supply-and-demand dilemma, the U.S. Department of State (DOS), working in conjunction with USCIS, has established a visa backlog system. The backlog has been particularly severe in the EB-2 category for individuals born in India or China, and in the EB-3 category for all persons regardless of country of birth.

Absent congressional relief in the form of an increase in the number of annual visas and/or a revised counting system, foreign nationals subject to the visa backlog could be forced to wait years to file their I-485 applications and/or to be approved as permanent residents. Understandably, the visa backlog debacle has triggered an intense desire among foreign nationals, physicians included, to pursue a green card in the most advantageous EB category. We now turn our attention to the various permanent residence options for foreign medical doctors, mindful of how each plays out in terms of visa backlog issues.

PERM Labor Certification Application: An Option for Every M.D.

The "default" option for foreign physicians, as for foreign nationals generally, is to start the permanent residence process by having the employer prepare and file a PERM application with the DOL. As with all PERM applications, health care employers sponsoring foreign medical doctors must undertake a test of the local labor market, with the goal of demonstrating that there are no qualified, willing, available and able U.S. workers to fill the advertised position. The employer embarks on a series of recruitment activities, including running advertisements in the local newspaper, posting the position at various external locations, and giving notice internally of the job opportunity. If there are no U.S. applicants who meet the minimum education and experience job requirements, the employer can proceed with filing the PERM application. All PERM applications for foreign physicians will fit into the EB-2 category, because all physicians are required to have a medical degree (or foreign equivalent) over and above a bachelor's degree.

One of the principal downsides with PERM applications for foreign physicians, however, is the risk that the employer will be unable to show that no "qualified" American doctors applied for the position. If the job being offered to the foreign physician is an entry-level family practice or general practice position, it can be difficult to disqualify U.S. physicians based on the required education, years of experience and any special skills or requirements. Newly minted primary care doctors tend to have similar educational and work experience backgrounds.

Under certain conditions, though, the health care employer may be able to show that there are no "available" U.S. doctors interested in the job. If the position is in a less attractive geographic location (e.g., inner city), involves less desirable patient demographics (e.g., non-English speaking clients), or entails a lower-than-market salary because many of the patients are indigent and/or without insurance, there may in fact be no U.S. doctors interested.

PERM applications for specialists, on the other hand, often fare better. For these PERM cases, health care employers can legitimately require completion of specialized residency programs and/or experience with specific skills. For example, a clinic looking for an endocrinologist might list requirements of a fellowship in endocrinology and one year of experience treating diabetic patients. The reality is that some health care facilities often struggle to find qualified U.S. physicians to fill key specialist positions, despite months or even years of extensive recruitment activities, which translates into a higher likelihood of success for related PERM applications.

Extraordinary Ability Petition: An Option for Selected Physicians

At the other end of the spectrum, a much smaller segment of foreign physicians may be eligible to pursue permanent residence in the EB-1 "extraordinary ability" category. Foreign medical doctors who can demonstrate "sustained national or international acclaim" in their field of medicine, and whose achievements can be extensively documented, can apply in this highly select category. The petition must demonstrate that the foreign national's work will provide "substantial benefit" to the United States. Although it is possible for an applicant to qualify in this category based solely on evidence of one major internationally recognized award (e.g., a Nobel Prize), most foreign physicians provide at least three of the following:

• Documentation of the receipt of lesser nationally or internationally recognized prizes or awards for excellence in their field;
• Documentation of membership in associations that require outstanding achievements of members, as judged by recognized national or international experts in their discipline;
• Evidence that the applicant has judged the work of others in the same field;
• Documentation of the applicant's scholarly publications in the field of endeavor;
• Published material about the applicant in professional or major trade publications or other major media, relating to the applicant's work in the field for which classification is sought;
• Evidence of original scientific contributions of major significance in the field;
• Evidence of a leading or critical role for organizations or establishments that have a distinguished reputation; or
• Evidence of a high salary in comparison to others in the same field.

The key to success in this EB-1 category is often finding the right "hook" on which to hang the foreign doctor's extraordinary-ability "hat." Not every applicant needs to be finding a cure for cancer or treating heart disease patients with the latest non-invasive surgical techniques, but there needs to be something distinctive that causes the person to stand out among his peers. As would be expected, specialty care physicians have a much greater opportunity to utilize this premium permanent residence category than primary care physicians.

The EB-1 "extraordinary ability" category has become particularly popular among physicians from India. Unlike the PERM or the NIW paths to permanent residence, which both fall in the EB-2 category for physicians, the "extraordinary ability" approach allows Indian physicians and family members to immediately file I-485 applications (along with supplemental applications for an Employment Authorization Card and Advance Parole travel documents) with the base I-140 petition. (Even for persons born in India, there generally has been no visa backlog in the EB-1 category.)

In most cases, the Indian physician's family members, who are typically in H-4 dependent temporary status, do not have work authorization until the applicant is able to file the I-485 application and the companion employment authorization application. Given that the visa backlog in the EB-2 category for Indian nationals can be three to five years—or more—a significant benefit of filing in the EB-1 category is that there is no delay between the I-140 and the I-485 phases. Often, Indian physicians file an "extraordinary ability" petition in combination with a PERM application, an NIW petition, or both.

National Interest Waiver Petition: An Option for Physicians in "Shortage" Areas

Foreign physicians who are working in a medically underserved area, health professional shortage area, or a Veterans Administration hospital have an additional path to permanent residence through the filing of an NIW petition. In a physician NIW petition, the "national interest" at issue is the availability of medical care for persons who have reduced access to physician services in their geographic area.

When the NIW program was established for foreign physicians, it was originally available only to doctors who worked in a primary care field, which included only family and general medicine. In early 2007, however, USCIS issued a memorandum stating that specialty care doctors could also file NIW petitions. Both foreign physicians who have previously obtained H-1B status following a waiver of the J-1 two-year home residence requirement and those who have never had J-1 status can file an NIW petition, as long as they are working in a shortage area.

The NIW approach allows the physician to bypass the labor certification application process and immediately file the I-140 immigrant visa petition in the EB-2 category. The ability to skip the labor certification stage offers several benefits. First, the foreign physician saves the approximately six months associated with the labor certification process, including a combined 60-day minimum for the recruitment and "cooling off" periods. Second, one of the main "wild cards" associated with the labor certification process is whether the employer will be able to legitimately disqualify all U.S. physician applicants. With an NIW petition, there is no direct "labor market test." Because designated "shortage" areas are already recognized as not having a sufficient number of U.S. physicians to meet the needs of the local population, the health care facility does not need to document efforts to recruit U.S. doctors. Third, although physicians born in India and China are subject to a severe backlog for permanent visas in the EB-2 category, physicians born in all other countries (and their dependent family members) can immediately file I-485 adjustment of status applications. This option is especially attractive, as it enables family members to get "open market" work authorization within two to three months of filing the I-485 application pursuant to an Employment Authorization Card. Many family members of foreign physicians have been in H-4 status, which does not provide work authorization.

The primary disadvantage of the NIW category is that although the I-485 adjustment application can be filed immediately (unless subject to the EB-2 backlog), it cannot be approved until the foreign physician completes an aggregate of five years of qualifying service in a designated shortage area. Physicians who obtained a J-1 waiver and are required to complete three years of service in a shortage area as part of their J-1 waiver obligations can count those years toward the five-year NIW requirement. For them, it is usually not an enormous additional burden to wait another two years for approval of the I-485 application. However, for non-Indian and non-Chinese physicians in H-1B status currently serving in a shortage area but not bound by the three-year service requirement associated with the J-1 waiver, the PERM-based path to permanent residence would likely be substantially faster than having to wait the full five years associated with the NIW-based approach. In addition, if the health care facility loses its shortage designation after approval of the I-140 NIW petition, with the PERM-based approach the doctor can still complete the permanent residence process based on the same employment. Foreign physicians with an approved I-140 NIW petition can switch employers during the five-year period, but must file a new NIW I-140 petition to demonstrate that they are still working in a shortage area.

In terms of the requirements for an NIW petition, the foreign physician must document that is working in a federally designated shortage area and providing medical care to underserved patients. The petition must include an attestation by a federal agency or by an appropriate state agency (such as the state Department of Health) that the medical services are in the public interest. Standard evidence includes an employment contract between the physician and the health care facility committing the doctor to providing a minimum of 40 hours per week of medical care for an aggregate of five years. If relevant, the petition must include a copy of the J-1 waiver approval. Of course, as is true with all employment-based permanent residence applications, the foreign physician must include complete evidence of his educational qualifications and professional credentials.

Conclusion

It seems to come with the territory—foreign physicians who seek status as a U.S. permanent resident often must endure a substantial waiting period, on top of all the time spent becoming a doctor. That's the bad news.

The good news is that foreign physicians have at least one, and sometimes multiple, avenues for pursuing the coveted green card. All foreign medical doctors have the option to use the PERM labor certification application as step one in the permanent residence process. The chance of success with this approach depends heavily on the local labor market and the pool of U.S. physician applicants, but many foreign physicians have obtained permanent residence in the EB-2 category in this manner. A small but still significant number of highly accomplished medical doctors have successfully reached the goal of permanent residence through the filing of an "extraordinary ability" application in the prized EB-1 category. Finally, foreign physicians who are willing to practice in underserved areas for at least five years have an additional path to permanent residence with an EB-2 NIW application. Though the ultimate waiting period is typically the longest with this approach, the likelihood of success, for most applicants, is generally higher than with either the PERM or "extraordinary ability" options. With one, two or even three available options, foreign physicians and their health care employers should embark upon the permanent residence process with a measure of optimism—and a heavy dose of patience.