|
=
August 29, 2011
=
Immigration Physician E-Alert
<=
/p>
Welcome to the second Clark Hill Immigration Update -
Physician Edition designed specifically for Physicians, Health Ca=
re
professionals and their employers.
In this edition, you will find information and tips =
to
keep in mind as the new cycle for "Conrad 30" waivers o=
pens
up for physicians who are completing their training in June 2012.=
We
will update employers and physicians about the H-1B
cap exemption challenges facing certain employers and the "s=
top
gap" solution USCIS has put into=
place
to provide predictability to H-1B visa
processing. You will also find an invitation to our upcoming semi=
nar
in New York City, where Roberta Freedman and Khorzad Mehta will s=
peak
about various topics in immigration law joined by recruiters, Sta=
te
Department of Health representatives, health care lawyers from Cl=
ark
Hill's Health Care practice group, and physician recruiters. Fina=
lly,
and most valuable to physicians of Indian and Chinese origin, we =
will
discuss retention of your priority date while waiting for permane=
nt
visa number availability.
We invite and welcome questions or comments so that =
we
can continue this bulletin to best serve you and your personal ne=
eds.
Please email us with your questions and comments at RFreedm=
an@ClarkHill.com
and KMe=
hta@ClarkHill.com.
![3D"Description:](3D"https://imgssl.constantcontact.com/ui/images1/ftf_btn_1.gi=)
Are You Ready? Most States Are Commencing Their FY 2=
013
Waiver Cycles October 1.<=
/p>
Residents and fellows who are currently completing t=
heir
final year of training in J-1 classification are likely actively
seeking positions with employers in the United States who can spo=
nsor
a waiver of their home residency requirement, if they intend to
continue to remain in the United States for the foreseeable futur=
e.
Certain States accept applications for only a short =
60
to 90 day period of the FY 2013 cycle (like Massachusetts, Florida
and Michigan) or accept applications on a first come first served
basis throughout the FY 2013 cycle (like Pennsylvania, California,
Connecticut and Maryland). An application with a State Department=
of
Health can take anywhere from 3 weeks to 6 months. The U.S.
Department of State, which receives the State Department of Healt=
h's
waiver recommendation, can take a further 4 to 8 weeks to recomme=
nd
the waiver to the USCIS, which in tur=
n can
take another 1 to 3 months to issue the final waiver approval. One
must, typically, expect to budget 4 to 9 months for the total wai=
ver
process to be completed. An extension of J-1 status in order to t=
ake
Board Exams and thereby extend authorized stay in the United Stat=
es
is legally possible.
As a preliminary step, many of our clients request a
case number on DS Form 3035, an online form, by submitting all
required documentation with a $215 filing fee to the U.S. Departm=
ent
of State. They concurrently begin the process to procure med=
ical
licensure in the State where they will ultimately practice, becau=
se
this is a mandatory component of the H-1B
petition. FCVS verification and a lic=
ense
application in the State within which a physician intends to prac=
tice
in addition to successful completion of Step III of the USMLE are typically mandatory components for
licensure to practice medicine in most states.<=
/p>
Cap Exemption - A Crisis Averted, But Questions Rema=
in.
The U.S. Government caps issuance of H-1B visas to foreign nationals at 65,000 per
fiscal year. Exemption from the cap is limited to employers that =
are
institutions of higher education, governmental research
organizations, or non-profit entities related to or affiliated wi=
th
institutions of higher education.
Within the last 18 months, USCI=
S
at the California Service Center reviewed their legal interpretat=
ion
of what the terms "related or affiliated" mean within t=
he
context of cap exemption for certain non-profit entities. This
apparent change in policy has resulted in the denial of many
petitions filed by employers who had previously been determined t=
o be
cap exempt. Training programs were seemingly endangered at non-pr=
ofit
stand alone teaching hospitals.<=
/o:p>
In order to maintain predictability of H-1B adjudication while they continued to rev=
iew
their legal policy, USCIS issued an
advisory on March 16, 2011, and interim guidance on April 28, 201=
1.
The advisory and guidance permits the USCIS<=
/span>
California Service Center to give deference to prior determinatio=
ns
of cap exemption and approve cap exempt H-1B=
petitions for those employers who had filed H-1B
petitions since June 6, 2006, absent a material change which calls
the original decision into question. In the months since this has
been implemented, the USCIS Californi=
a Service
Center has formed an "Affiliation/Relation Team" of
adjudicators to exclusively review such cases. Recently, case
adjudications have been predictable and timely.=
Thus, a crisis that could have decimated many stand alone community non-profit hospitals =
which
have graduate medical training programs was seemingly averted. However,
questions still remain. Principal among the questions is how =
the USCIS California Service Center will adjudi=
cate
requests for cap exemption based on affiliation and relation for =
those
non-profit entities which have not previously been granted an H-<=
span
class=3DSpellE>1B petition since June 6, 2006. Another open
question is under what circumstances USCIS
will consider a material change to have taken place such that a
previous cap exemption decision should not be granted deference. =
We
will publish updates in future editions of our bulletin as this
matter develops.
If your future job offer will potentially have these
issues, we encourage you to speak to either Roberta Freedman or
Khorzad Mehta to discuss options and develop a personalized legal
strategy.
Come See Us At Our Upcoming Seminar in New York
City!
Roberta Freedman and Khorzad Mehta of Clark Hill's
Immigration Practice Group will be speaking at a free seminar
on Saturday, September 24, 2011 in New York City, New York. =
The
seminar, entitled "Life After Training: Options for J-1 and =
H-1B Physicians" will take place at the =
New
York Marriott at the Brooklyn Bridge located on 333 Adams Street =
in
Brooklyn, New York. Khorzad and Roberta will speak on immigration
matters directly relevant to international medical graduates at a=
ny
stage of their training in the United States, PGY
1 and onwards. Physician Recruiters will also be present to discu=
ss
practical career matters while attorneys from Clark Hill's Health
Care practice will provide legal tips on employment contract issu=
es.
Refreshments will be served.
Please RSVP to Shayna John (SJohn@Clark=
Hill.com)
to attend and for additional information. Walk-ins are also welco=
me.
Tell your friends!
Priority Date Retention - Keep Your Place In The
Immigration Line.
All immigrant physicians to the United States are
sensitive to the long processing times for permanent immigration =
to
the United States. Immigrant physicians from India and China are =
even
more acutely sensitive because of immigrant visa oversubscription=
.
All immigrant visas to the United States, family bas=
ed
and employment based, are numerically limited (but note that
immigrant visas for immediate family members of United States
citizens are quota exempt). The employment based immigrant visas =
are
divided amongst all countries of the world and are then further
subdivided amongst the different immigrant categories for each
country. Every country is allocated equal numbers of visas per fi=
scal
year. Immigrant visas are charged for applicants based on their
country of birth, not their country of citizenship. Therefore, a
citizen of India born in Kenya would be charged to Kenya's alloca=
tion
of visa numbers, not to India's allocation of visa numbers. Certa=
in
countries, like India and China, have greater demand for U.S.
permanent immigrant visas than do other countries like Canada or =
the
United Kingdom, and therefore exhaust their allocation of immigra=
nt
visas per fiscal year faster than other countries. This difference
between supply and demand of visas requires the U.S. Department of
State to impose cut offs to provide for the even allocation of vi=
sas
to applicants every fiscal year on a first come first served basis
for India and China in the immigrant category most applicable to
physicians, known as EB-2. The cut of=
fs are
based on the "Priority Date" which is typically the date
when the first affirmative step towards lawful permanent residence
(either a Labor Certification or the filing of an I-140 for those
immigrant processes where a Labor Certification is not required) =
is
filed with the relevant governmental agency. Effectively, a
"Priority Date" is your "ticket" in line and =
you
are waiting for your "ticket number" to be called
before you are served.
In countries with greater demand for U.S. permanent
immigrant visas, like India and China, the time until when your
"ticket number" is called can stretch from 4 to 7 years.
When one is considering such large spans of time, it isn't
unreasonable for career opportunities to present themselves,
necessitating terminating employment with the employer who filed =
the
immigrant visa petition to join another employer. Oftentimes,
immigrant physicians wonder if changing employers means that they=
are
going to lose their place in line and start the process all over
again.
There is no doubt that changing employment may requi=
re
the filing of a new labor certification and/or immigrant petition.
However, this does not mean that the wait for the immigrant visa =
must
start all over again. U.S. immigration regulations permit an
individual to retain their priority date from their previous empl=
oyer
when a new employment based immigrant petition is filed on their
behalf. The priority date is retained even when the new petition =
is
not in the same category as the old approved petition, for instan=
ce a
move from the EB-2 to the EB-1 category. Retention of the priority da=
te for
immigrants, especially those from India and China, provides for
orderly immigration to the U.S. on a first come first served basis
and prevents unfair prejudice and career stagnation to those
immigrants who must endure long time frames until their visa numb=
er
is called and they can receive their lawful permanent residence.<=
o:p>
|
![3D"Description:](3D"https://imgssl.constantcontact.com/letters/images/1101093164=)