Introduction to Physician Immigration

Business Immigration Paralegal - Physician Immigration Christopher J. Brelje Immigration Attorney cbrelje@breljelaw.com Rachel Bus rbus@breljelaw.com Kerri Smith Business Immigration Paralegal - Physician Immigration ksmith@breljelaw.com www.breljelaw.com 3080 N. Litchfield Road Goodyear, Arizona 85395 (623) 536-5750 Chris: ext. 104 Rachel: ext. 102 Kerri: ext. 105

Immigration Terminology US Citizen: Native born Naturalized/Acquired Under CCA Foreign Nationals (Two Categories): Immigrant: Legal Permanent Resident (“LPR” or “green card”) Conditional LPR (marriage to USC or EB-5 case) Non-Immigrant: Work status (e.g. H-1B, L-1, TN, etc.) Non-work status (e.g. B-1/B-2 visitor) Law Offices of Brelje and Associates (623) 536-5750

Immigration Terminology Visa: A document issued by the U.S. Department of State (DOS) through a US Embassy or Consular Post outside the US and placed in a foreign national’s passport Status: An immigrant or non-immigrant classification given by the U.S. Department of Homeland Security (DHS) at the time of entry as evidenced by an I-94 card or similar document or database entry Law Offices of Brelje and Associates (623) 536-5750

Visa Example Law Offices of Brelje and Associates (623) 536-5750

Sample Electronic and Paper I-94s Law Offices of Brelje and Associates (623) 536-5750

Common “Non-Immigrant” Employment Classifications J-1: exchange visitor H-1B: specialty occupation (professional) H-2B: temporary/seasonal workers L-1: intracompany transferee TN: specific occupations under NAFTA O-1: individual of extraordinary ability OPT: optional practical training for students Law Offices of Brelje and Associates (623) 536-5750

Two Most Common Hiring Paths for Foreign Medical Graduates Completing Medical Residency J - 1 IGA J-1 Waiver Exempt from H 1B Cap 1B (must work in underserved area) (never been i n J status ) Plan A: consular processing Previously Counted against cap? (no location restriction) No Yes October 1 start date Cap Subject Filing Plan B: bridge strategy Exempt from Cap or “at” argument exempt filing Law Offices of Brelje and Associates (623) 536-5750

J-1 Exchange Visitors An Exchange Visitor visa is for those participating in an approved Exchange Program to study, research, teach, or receive graduate medical training Department of State determines employment entities that can act as Exchange Sponsors Employment is authorized only under the specific terms of the Exchange Program Most foreign nationals must satisfy a 2-year home residency requirement upon completion of the J-1 program Law Offices of Brelje and Associates (623) 536-5750

J-1 Exchange Visitors - Waivers IGA waiver of the 2-year home residency requirement (Physicians only) Requires the recommendation of an Interested Government Agency, plus: Arrangement to be employed full-time in H-1B status in a medically underserved area Obtaining a No Objection letter from his or her home country (if J-1 program funded by the government) Agreement to begin employment within 90 days of the receipt of the waiver Obtaining sponsorship from State Health Dept. or other Interested Government Agency Waiver of the 2-year home residency requirement (Available to all) Establish exceptional hardship to US citizen or Permanent Resident family member; or Probable persecution (based on race, religion, etc.) Law Offices of Brelje and Associates (623) 536-5750

Essentials of H-1B Status Limited to jobs that require at least a Bachelor’s Degree Foreign national can qualify with a foreign degree deemed equivalent to a U.S. Bachelor degree or a combination of post-secondary education and work experience Prevailing Wage requirement Six-year maximum Law Offices of Brelje and Associates (623) 536-5750

H-1B Cap 65,000 Annual limit for new H-1B visas Additional 20,000 for Master’s degree or higher from U.S. University High demand results in a lottery Applications must be filed in the first week of April Employment begins no earlier than October 1 for an initial period of up to 3 years Law Offices of Brelje and Associates (623) 536-5750

H-1B Cap Alternatives Cap-Exempt Employment Permanent Residency J-1 Fellowships O-1: Aliens of Extraordinary Ability E-2 Entrepreneur H-1B1 & E-3 (only available to nationals of Chile, Australia, and Singapore) TN NAFTA (only available to citizens of Mexico and Canada and only for physicians in teaching or research positions) Law Offices of Brelje and Associates (623) 536-5750

Cap Exemption Employed by Institute of Higher Education, Government Research Organization; or Related or Affiliated Nonprofit Entity Must demonstrate “active, working relationship” if relying on affiliation with institute of higher education and must demonstrate that one of the nonprofit entity’s “fundamental activities” directly contributes to research or the educational mission of the government research organization/institute of higher education. Employed “at” Institute of Higher Education, Government Research Organization; or Related or Affiliated Nonprofit Entity Physician must spend majority of time at the qualifying entity and the work performed must directly and predominately further the normal, primary or essential purpose, mission, objective or function of the institution.  J-1 IGA waivered physicians are exempted from the cap Law Offices of Brelje and Associates (623) 536-5750

Transition from Cap-Exempt to Cap-Subject Employment “Concurrent Employment” Must be working for cap-exempt employer at the time of filing Subsequent Cap-Subject petition H-1B Portability Timing Considerations & Risks B-1 Bridge or J-1 Extension Consular Processing Law Offices of Brelje and Associates (623) 536-5750

Moonlighting & Concurrent Employment No Cap considerations Requires H-1B petition by 2nd employer noting concurrent employer Employment Contract considerations Law Offices of Brelje and Associates (623) 536-5750

Pathways to employment based permanent residence “green card” Nonimmigrant Visa EB-1 I-140, NIW I-140 PERM Labor Certification EB-2 I-140 Green Card Application STEP 1 STEP 2 STEP 3 Law Offices of Brelje and Associates (623) 536-5750

PERM Based I-140 Immigrant Visa Petition The PERM Labor Certification process includes: Filing a Prevailing Wage request with Dept. of Labor (Form ETA-9141), Testing the U.S. labor market through Recruitment, and Filing the PERM Certification with Dept. of Labor (Form ETA- 9089) Law Offices of Brelje and Associates (623) 536-5750

Physician National Interest Waiver EB-2 I-140 An alternative to PERM for qualified physicians A PERM Labor Certification is not required, similar to EB-1 Requirements for PNIW include: Five-year commitment to the underserved area Employment agreement covering a full five years of employment Support from the State Health Agency or Interested Government Agency (e.g. Department of Veterans Affairs) Law Offices of Brelje and Associates (623) 536-5750

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