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10. Should I Stay or Should I Go? The Dilemma of the FMG in the United States Seeking a PGY Position While in B-2 Status
Over the last 12 years, the following scenario is often presented- by foreign medical school graduates:
“I am presently in the United States in B-2 status as a visitor. My B-2 status expires before my residency starts. Should I remain in United States and process my H-1B petition and seek a change in status or should I depart the United States?”
Prior to the tragedy of September 11th, the answer was relatively simple. If the FMG had a clean record with the US consulate, there was no reason to doubt that the consulate would be willing to issue the H-1B visa to the applicant. Accordingly, the FMGs may have determined that it was practical for them to return home to obtain an H-1B visa or J-1 visa in their passports, thereby allowing them to travel freely to and from the United States while in their respective status. Additionally, the FMG might visit family and friends in their home country that they may not see again for a long time once the residency is started. Once the H-1B petition is approved, the FMG would apply with any dependents for their visas at the U.S. Consulate, thereby having the ability to travel to and from the United States while in H status.
As a result of September 11th, nationals of certain countries now experience extreme difficulties and vast delays in obtaining visas at the consulates in their home countries. A listing of those countries is contained in the attached memo, entitled “Procedure for Obtaining the H-1B visa at a U.S. Consulate.” Individuals who are not nationals of those countries, and have not made any misrepresentations to a U.S. consul official or on any applications, and have not violated their immigration status or remained in the US past their authorized period of stay, should not have a problem getting the H visa at the U.S. Consulate in their home country.
Very often, FMGs have represented to consul officer that they were coming to the United States to attend a conference, but then never actually attended the conference. If the consul officer determines that a visa applicant may have misrepresented their true intent when they applied for the B visa, the consul officer may refuse to issue the H or J visa.
Additionally, many FMGs obtain student visas for Master of Public Health programs but then they either change to a different program, never attend the program or leave the program before completion. Again, this may lead to problems at the consulate.
Generally, if an individual is seeking a change in status to H-1B status, and their employment commences subsequent to the expiration of their status, the United States Citizenship and Immigration Service should not grant a change of status to H-1B status since the individual has not had a legal status during the intervening period. For example, if an individual’s B-2 status expires on February 2nd and the residency starts July 1st, the USCIS should not grant the change of status since the individual was out of status between February 2nd and July 1st. However, even if the USCIS grants a change of status under those circumstances, there could be very serious ramifications. Please see the discussion on this issue contained in the memo entitled “The H-1B Visa Category”.
An individual submitting an application to extend their visitor status cannot have the intent to get the extension and then file for a change of status to H-1B status, as there may be issues regarding fraudulent intent with regard to B-2 application. Additionally, should they then decide to go home, they may have serious problems either obtaining another visitor visa or a student visa.
It is strongly recommended that you discuss all options regarding your visa status with an attorney in order to select the option that will best serve your needs.
Last update: November 27, 2005