Section 1

9. Immigration Brochure for the Foreign Medical School Graduate

The United States Immigration and Nationality Act is constantly undergoing revisions which may affect your plans to live and work in the United States. The following information will provide you with answers to many common questions. Due to the intricacies inherent in these laws, it is suggested that you obtain the services of an attorney engaged in the practice of Immigration Law to assist you.

An H-1B petition is submitted by a sponsoring U.S. employer to the United States Citizenship and Immigration Service, requesting them to allow the employer to hire a specific potential international employee for a temporary period of time. It can be used to employ a foreign medical school graduate for a residency or fellowship position, if the appropriate examinations have been passed. (See earlier memos). It can also be utilized for research positions. The position must require at least the equivalent of a four year U.S. Bachelors degree and the candidate must have the requisite degree, or the equivalent based on experience.

1. Will I be allowed to work once the petition is approved?

USCIS will issue Form I-797, Notice of Action, once the petition is approved. If you have not violated your immigration status by working without permission from USCIS or remaining in the United States past the time authorized by the USCIS, then Form I-797 will also change your status to H-1B and will contain language authorizing you to work for the petitioner, provided same has been requested. It will also list a start date and end date. Once the start date has been reached, you can commence employment. If you have violated your status, or are outside the United States, Form I-797 will not change your status or provide employment authorization. You must obtain an H-1B visa from a U.S. Consulate in your home country. A new petition must be filed and approved for each employer you want to work for. You can have multiple H-1B petitions. You can commence employment with a new employer once the H-1B petition has been filed, if you are presently employed in the United States in H-1B status and have not violated your status, assuming you meet licensure requirements and the commencement date listed on the H-1B petition has been reached.

2. What is Form I-94?

Form I-94 is the card issued to you by USCIS upon your entry into the United States. It is endorsed by USCIS with your non-immigrant status. If you obtain an H-1B visa at a U.S. Consulate, the I-94 will be endorsed by ICE with H-1B status at the time that you enter the United States, allowing you to work for the entity that has filed an H-1B petition on your behalf. When a petition for H-1B status is filed on your behalf while you are in the United States in a legal non-immigrant status, USCIS may grant the change of status or extension of status, if same is requested, and note same on an I-94 which is attached to the bottom of Form I-797, Notice of Action. Form I-797 will document any changes, including extensions, changes of status and employment authorization.

The LCA is an application that all employers must submit and have accepted by the Department of Labor, in order to file H-1B petitions and extensions of H-1B status with USCIS. See enclosed memos.

2. Why are some hospitals reluctant to file an H-1B petition for a validity period greater than one year?

USCIS Regulations require employers to pay the return transportation of the beneficiaries of H-1B status to their home country in the event that they are terminated prior to the expiration of the H-1B petition. Since the contract of employment is usually only for one year, the hospital may want to limit the time of the H-1B petition for one year. H-1B status can be granted for an initial period of up to three years. Generally, one can remain in H-1B status for up to six years. See elsewhere in this memo re: extensions past the 6^th year.

Your spouse and children can apply to change their status to H-4 if they are in the United States with you and have not violated their immigration status. If they are outside the United States or have violated their status, they can apply for H-4 visas at the U.S. Consulate in their home country. However, please see discussions in the H-1B memos regarding individuals who remain illegally in the United States for more then six months and then leave. The H-4 visa does not authorize the bearer to be employed in the United States. Once in the United States, they can apply for Social Security cards. However, cards are usually not issued. If issued, the card will be endorsed with the phrase, “not valid for employment.”

You can travel outside the United States while you are in H-1B status. However, in order to return, you must have an H-1B visa endorsed in your passport. The visa must be valid through your return date. Initial visas can only be placed in the passport at a U.S. Consulate. Please check with your attorney prior to departing the United States for an H-1B visa. Security clearances are required for certain foreign nationals. The clearances can take a few months or several months. Processing times are unpredictable.

Visa Revalidation was the process of having the H-1B visa in your passport extended to correspond to the extension of an H-1B petition issued by USCIS. This procedure was done by mail at the U.S. State Department. It avoided the grueling and possibly risky process of applying in person at a U.S. Consulate outside the US. However the procedure is no longer available.

6. Can I apply for a visa in Canada or Mexico or another Consulate besides my home country Consulate?

Prior to November 19, 2001, if the USCIS had changed your status to H-1B or extended your H-1B status, you could have applied to any U.S. Consulate for an H-1B visa. This policy has been modified and you should consult with an attorney prior to departing the United States. If you do apply for a visa in Canada or Mexico and it is refused, you will not be allowed to return to the United States with just the H-1B approval notice. You must go to the U.S. Consulate in your home country and apply for the visa there.

A hospital can assist you in obtaining permanent resident status. It is usually done for Attending or Research positions. The process is quite involved and may require an application to the Department of Labor, prior to filing a petition with the USCIS. The job market in the United States must be tested. It must be established to the Department of Labor that there are no U.S. Citizens, Permanent Residents or legalized refugees/asylees who are qualified for and want the job. Often, hospitals will not want to get involved in the process. It is very difficult to get cases approved while in a Residency slot, as these cases may take in excess of three years to process.

Foreign Medical School Graduates entering the United States to participate in a J-1 program are representing to the U.S. Government that they will return to their home country for two years after the completion of the program. However a waiver of this requirement may be obtained if the physician finds a position in a Health Professional Shortage Area (HPSA), a Medically Underserved Area (MUA), or a VA facility. Additionally, if returning to your home country would cause severe hardship to a family member who is a US Citizen, a waiver may be requested as well. There may be more options to obtaining Permanent Resident Status if one is in H-1B status, compared to J-1 status. The H-1B status does not contain the two-year foreign residency requirement.

Additionally, when applying for a J1 vias at a US Consulate or a J2 dependent visa, the applicant will have to establish that they have ties to their home country and will be returning home after completion of the J1 program. H1 and H4 visa applicants do not have to establish ties to their home country.

9. Can I obtain a New York State medical license after I complete my medical residency program?

In New York State, a physician cannot obtain a license to practice medicine after completion of Residency without having U.S. Citizenship or Permanent Residence Status. However, if a physician will be employed in a HPSA or MUA, the physician may qualify for a Limited License, specifically allowing for employment in that area.

Although the USCIS may approve an H-1B Petition on behalf of an individual in J-1 status, it will not grant a change of status with the approval of the petition or grant Employment Authorization. The physician would have to apply at a U.S. Consulate for an H-1B visa. The Consulate should refuse to issue a visa until the physician fulfills the two-year foreign residency requirement from the previous J-1 status, or obtains a waiver. Even if the Consul issues a visa, the physician will have to fulfill the two-year foreign residency requirement before obtaining permanent resident status. Thus, nothing is gained by trying to switch from J-1 to H-1 status.

11. Can I fulfill the two-year foreign residency requirement anywhere outside the United States?

Every state has its own license requirements. For example, in New York State, a physician in an accredited residency training program does not need a license. However, a participant in a Fellowship program in New York State may need a Limited Permit to participate in the program and to obtain H-1B status. In Pennsylvania, Connecticut, Illinois, Massachusetts and Ohio, among other states, a training permit or license is needed. In New Jersey, the facility will obtain a blanket license for its first-year residents. After the first year, a license or permit is needed.

15. Can I commence employment after obtaining H-1B Status, even if my Social Security Card has not been issued?

Currently, it is taking up to three months to obtain Social Security Cards. When applying for the card, the Social Security office will issue a letter to you confirming that you have applied for same. The Social Security website specifically states that the individual who possesses said letter can commence employment. This is obviously dependent on being in a valid non-immigrant status which allows employment.