Immigration Law and International Medical Graduates

At the risk of leaving out much pertinent information, this article proposes to serve as a general overview of the erstwhile complex and complicated area of Immigration law as it concerns foreign physicians seeking to enter the U.S. for purposes of graduate medical education, clinical practice, teaching and/or research. This article will be limited to providing some operating definitions and proceed with a general discussion of the B-1, H-1B, O-1 and J-1 nonimmigrant visa categories. The article will then address the two-year foreign residence requirement that J-1 residents and fellows are subject to and mention the various waiver strategies thereof. This article will not discuss the various immigrant visa or “green card” options. Interested parties are invited to contact the author directly with their queries about immigrant visas or any other immigration-related matter

Definitions
An “alien” is any person not a citizen or national of the U.S. All visa holders, non-visa holders, and permanent residents (that is, green card holders) are classified as aliens. An immigrant is a person who is a lawful, permanent resident of the U.S. This classification does not include persons with temporary visas. A nonimmigrant is a person who has been issued a temporary visa by a U.S. consular officer (if abroad) or other authorized official (if in the U.S.).
An International Medical Graduate (IMG) is a person who has graduated from a medical school in an international state or who is otherwise qualified to practice medicine in an international state. To claim IMG status by virtue of having gone to medical school, an IMG must have graduated from a medical school that 1) is listed in the World Directory of Medical Schools published by the World Health Organization (http://www.who.org/), and 2) is located outside the U.S., Canada, and Puerto Rico. All IMGs desiring to enter the U.S. to practice medicine must have passed parts I and II of the NBME examination or its equivalent (that is, VQE, FMGEMS, or the USMLE). Unless a Canadian medical school graduate is conferred a degree by a medical school that is accredited by the Liaison Committee for Medical Education (http://www.lcme.org/), he or she is considered an IMG and is subject to all the requirements of an IMG. Examinations are waived for IMGs who 1) are of national or international renown in the field of medicine, 2) were licensed and practicing medicine in the U.S. before 9 January 1978, or 3) come to the U.S. to teach or to conduct research in which no direct patient care is involved.
The Educational Commission for Foreign Medical Graduates (ECFMG) (http://www.ecfmg.org/) administers examinations to IMGs and determines whether they are qualified to enter an accredited residency or fellowship program in the U.S. The ECFMG website offers a tremendous amount of information about the USMLE, J-1 sponsorships and provides valuable links to other web resources.
The United States Medical Licensing Examination (http://www.usmle.org/) was introduced in 1992 and replaced the National Board of Medical Examiners (NBME) examination, the Foreign Medical Graduate Examination in the Medical Sciences (FMGEMS), and the Federation Licensing Examination (FLEX). The USMLE is a three-step examination offered at various times during the year in selected locations throughout the U.S. and the world.

Nonimmigrant Visas
B-1 (Temporary Visitor for Business)B-1 visas are available to (1) IMGs or international medical students (IMS) who are coming to the U.S. to take an elective course at an American medical school or hospital that is part of their formal medical education, (2) IMGs who come to the U.S. to observe medical practices, to consult with other physicians on the practice of medicine, or both, and (3) IMGs desirous of coming to the U.S to interview for GME positions. A B-1 nonimmigrant may not work in the U.S. and cannot participate in any patient care. Generally, a person may not remain in the U.S. with a B-1 for more than one year.

H-1B (Temporary Worker)
The H-1B is the most preferred visa by IMGs and, if offered by a GME program, can often be used to attract the most qualified candidates. An H-1B enrolled in a GME program may engage in any medical activity provided the he or she (1) has passed all parts of the USMLE (or its equivalent) or is a graduate of a U.S. medical school, (2) has established competency in oral and written English, (3) is fully licensed to practice medicine in a foreign state, and (4) is otherwise authorized to practice in the state of intended employment.
If an IMG has not passed the necessary examinations, he or she may still enter the U.S. under the “researcher/teacher” classification, which specifies that the employer must certify that any patient care will be incidental to the IMG’s research. After coming to the U.S. and passing the necessary examinations, a “researcher/teacher” IMG may legally change his or her H-1B classification to “medical resident.”
The H-1B visa can be granted for a maximum of 6 years. As of the date of this article, IMGs who will be employed in a research or GME capacity by (i) institutions of higher education, (ii) their related or affiliated non-profit entities, (iii) nonprofit research organizations, or (iv) governmental research organizations are exempt from the number of H-1Bs that may be granted annually (195,000 for fiscal year 2001). Once a petition filed by an employer is approved, the IMG (other than citizens of Canada) must apply for an H-1B visa at a U.S. consulate. If the IMG is in the U.S. under some other visa status (such as B-1/B-2, F-1, and so forth) the IMG’s status may be adjusted to H-1B in the U.S.

J-1 (Exchange Visitor)
Administered by ECFMG, the J-1 visa is the most common visa for IMGs. To qualify for certification and sponsorship by ECFMG, an IMG must have passed Steps 1 and 2 of the USMLE, have a contract for a position in a “matched” program accredited by the Accreditation Council for Graduate Medical Education (www.nrmp.aamc.org/nrmp) and have demonstrated competency in oral and written English. A J-1 may engage in direct patient care.

J-1 Waivers
Many J-1s are subject to a two-year foreign residence requirement upon the completion of their training. This rule is strictly enforced wherein the J-1 visa holder must return to his or her country for at least 2 years before being allowed to re-enter the United States in another visa category. Many J-1 visa holders, however, try to have the 2-year rule waived. Not surprisingly, this is difficult. The following are the only statutory grounds for an IMG to obtain a waiver of the 2-year foreign residence requirements:
Pursuant to a recommendation by an interested federal agency or a state department of health to the INS
Upon the issuance of a “No Objection” letter from the J-1’s home country (not applicable to IMGs who were issued J-1s for GME purposes)
Upon a showing that the J-1 will face persecution upon returning to his or her home country
Upon a showing that a U.S. citizen or permanent resident spouse and/or child would face “exceptional hardship” were the J-1 required to fulfill the 2-year foreign residence requirement
J-1s are required to work in federally Designated Health Professional Shortage Areas to be eligible for a waiver. The agencies that most frequently act as interested federal agencies are the U.S. Department of Agriculture and the Appalachian Regional Commission. In addition to USDA and ARC, other federal agencies, most notably the U.S. Health and Human Services Administration, can act as an interested agency. Finally, each state is empowered to recommend up to 20 waivers. Each agency had its own waiver application guidelines and should be consulted on a case-by-case basis.

O-1 (Alien with Extraordinary Ability)
Given the difficulty of J-1 waivers, IMGs and their employers often look to the O-1, which is the only relevant visa that a J-1 who is subject to the foreign residence requirement can apply for. To qualify for O-1 status, one must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise. This is established by receipt of nationally or internationally recognized prizes or awards, membership in associations field which require outstanding achievements of their members, published material in professional publications or major media about the alien concerning the alien’s work in the field, participation on a panel, or individually, as a judge of the work of others in the field, scientific, scholarly, or business-related contributions of major significance in the field, authorship of scholarly articles in the field in professional journals or other major media, employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation, high salary or other remuneration commanded by the alien for services and other comparable evidence. There is no explicit statutory limitation on the period of stay for an O-1.