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March 17, 2011
Immigration
Physician E-Alert
Welcome to the
first quarterly Clark Hill Immigration Update - Physician Edition
designed specifically for Physicians, Health Care professionals and
their Employers. This update will be published quarterly and will
contain valuable and timely information and insight into developments
in the field of immigration for doctors, medical clinics and related
professionals. You can click here to download a copy of our
brochure, "Immigration Options for Physicians."
In
today's immigration environment, change in interpretation of law,
immigration process and immigration procedure can happen suddenly.
Special editions and alerts will be published between quarterly editions,
as the need arises.
The
overriding purpose of the update is to serve you, our valued clients.
We invite and welcome questions or comments to incorporate into our
future editions to bring you the information that you need most.
Please email us with your questions and comments at RFreedman@ClarkHill.com or KMehta@ClarkHill.com.
FY 2011 State 30 Program Update
As
of this writing, the status of the State 30 Programs for the current
fiscal year can be accessed here. Most states are still open and
accepting applications. There is still time to file a J-1 waiver
application in some states for those Physicians finishing their
training in 2011. Click here for more information
about the J-1 process.
However,
prior to applying for a waiver or signing an employment contract, it
is advisable for your attorney to contact the Program Administrator
of the J-1 Program in the State where you anticipate working to
determine availability, health care priorities. and other factors
relevant to your personal situation.
Click here for a complete list of
which States still have J-1 waiver slots.
H-1B Cap Exemption and the Effect on Start Date For
Physicians After Completion of Training
Generally,
there are only 65,000 H-1B visas per government fiscal year (Oct. 1
to September 30 is a government fiscal year) available in the United States.
Most employers (generally for profit employers) are subject to the
"cap." However, certain employers (like universities,
non-profits affiliated with universities, or government research
organizations) are exempt from that 65,000 quota or "cap."
Individuals
present in the United States in H-1B classification to complete
graduate medical residencies and fellowships are typically exempt
from the cap because they are employed by or work at teaching
hospitals at major educational institutions. Additionally,
their status generally expires at the end of June, coinciding with
the end of their training.
This
can present a problem for those Physicians who complete their
training in June and have an offer of employment with a for profit
medical practice starting in July. The 65,000 visas "run
out" very quickly (they have already run out for this government
fiscal year, Oct. 1 2010 to Sept. 30, 2011, as of January 26, 2011).
Physicians, like other foreign nationals, are not eligible to get a
new H-1B visa subject to the cap until the new fiscal year
starts on Oct. 1, 2011 and the earliest they can file for the H-1B
visa is Apr. 1, 2011. This means there would effectively be
a "gap" between June, when most people complete their
training, and the earliest start date possible, October 1.
Additionally,
a license to practice medicine in the State where the work will be
performed is required prior to filing the H-1B petition; since many
Physicians are not eligible for licensure until after they complete
their training in June, they are not able to file as early as
possible in April and run the risk that the H-1B visa numbers will
run out before they have a chance to apply for their cap subject H-1B
visa status.
On
a case by case basis, there may be ways for the Physician to continue
working despite the applicability of the H-1B cap, depending on
different factors. Our office has a lot of experience strategizing
with our clients to effectively and creatively solve these issues.
Physicians should speak with immigration attorneys to formulate a
personalized strategy to maximize the chances to start employment
immediately upon completion of their training.
Extraordinary Ability Petitions - Simply Meeting Three
Out Of The Ten Criteria Is Not Enough
Many
Physicians are attracted to earning Lawful Permanent Resident status
in the United States through the Extraordinary Ability, or EB-1,
category. This is attractive to many Physicians because it does not
require employer sponsorship or recruitment process, permits the
Physician to self-sponsor themselves and, for Physicians born in
countries that are currently backlogged for immigrant visa numbers in
other immigrant categories EB-2 and EB-3 (like India and China), has
immediate visa availability.
The
regulations define "Extraordinary Ability" to be a level of
expertise indicating that the individual is one of that small
percentage who have risen to the very top of the field of endeavor.
They permit an individual to show this by either providing evidence
of having earned a major, international recognized award (like a
Nobel Prize) or three out of ten other criteria
In
order to help USCIS adjudicators make
decisions concerning an individual's extraordinary ability, the USCIS issued guidance on February 2, 2011. Click here for a copy of the memo.
This guidance instructed USCIS adjudicators
to implement a two-part approach for evaluating evidence
submitted in support of all petitions filed for individuals of
Extraordinary Ability. USCIS adjudicators
are instructed first to objectively evaluate each type of
evidence submitted to determine if it meets the parameters applicable
to that type of evidence described in the regulations. USCIS adjudicators then should consider all of the
evidence in totality in making the final merits determination
regarding the required high level of expertise for the immigrant
classification.
The
end result of USCIS policy is that simply
meeting three of the regulatory criteria is not enough to convincingly
determine whether an individual has extraordinary ability as one who
is of that small percentage who have risen to the very top of the
field of endeavor. The totality of the evidence, when judged against
the field as a whole, must support a finding of extraordinary
ability as well.
Although
USCIS has generally exercised a strict
review of Extraordinary Ability petitions in the past, it is likely
that the memo will further limit the scope of what extraordinary
ability means under the regulations.
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