Welcome to the Berardi Immigration Law Health Care Resource Center

Foreign health care workers play a major role in the health care industry in the United States. Berardi Immigration Law represents many reputable health care organizations, as well as physicians, nurses, researchers, and other health care workers. Our attorneys evaluate each client’s options and tailor a customized immigration approach. There are a variety of visa options available, depending on the client’s situation and circumstances.

NONIMMIGRANT VISA OPTIONS

Our firm considers the following visas for foreign health care workers:

H-1B specialty occupation visas, and analyzing for cap-exempt filing opportunities

The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation.” This is generally defined as a position that requires at least a Bachelor’s degree or the equivalent. Many foreign nationals who come to work as physicians in the United States do so pursuant to H1B status. Candidates must usually be counted against the H-1B cap before the individual is eligible to work in H1B status, unless the institution is:

  • an accredited, nonprofit institution of higher education;
  • a nonprofit entity that is related to or affiliated with a qualifying institution of higher education; or
  • a nonprofit research organization or a governmental research organization. 

J-1 visas and J-1 waivers

The Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-and study-based exchange visitor programs. Many international medical graduates (IMGs) pursuing graduate medical studies opt to use this visa. IMGs in the United States on J-1 visas are subject to a two year residency requirement. This requirement holds that a J-1 visa holder must be present in their home country or country or permanent residency for two years prior to applying for another non-immigrant visa category (H1-B) or permanent residency in the United States. Waivers can be applied for in order to bypass this requirement. There are five circumstances which make a J-1 visa holder eligible for a waiver:

  • the visa holder receives a no objection statement from the host government;
  • an interested U.S. Government agency requests a waiver on the visa holder’s behalf;
  • the visa holder would be persecuted upon return to the country of residence;
  • the residency requirement would cause exceptional hardship to a U.S. citizen or a permanent resident spouse or child; or,
  • a designated State health agency or its equivalent requests a waiver.

O-1A visas for individuals with extraordinary ability in science

The O-1A visa is for individuals with an extraordinary ability in the sciences, education, business, or athletics. “Extraordinary Ability” means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.  This is a category to consider for well-published researchers, accomplished clinical physicians, and other highly-skilled and achieved health care professionals. The O-1 category is also an exception to the J-1 two-year home residency requirement.

TN category for Canadians and Mexicans in the health care industry

The TN Visa category was created under the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships for the U.S., Canada, and Mexico. Canadians and Mexicans may be eligible to work in the U.S. as a nonimmigrant NAFTA professional if they meet certain conditions. Generally, each profession listed under this category requires the applicant to possess a Bachelor’s degree as an entry-level requirement. In some professions, an alternative to a Bachelor’s degree is listed, such as related experience or special licensing.

USCIS considers the following medical professionals for the TN category: dentist; dietitian; medical laboratory technologist; medical technologist; nutritionist; occupational therapist; pharmacist; physician; physiotherapist; physical therapist; psychologist; recreational therapist; registered nurse; and veterinarian. It is important to note that only physicians in research or teaching roles are eligible for the TN visa.

E-2 Investor Visas, where appropriate

The E-2 Treaty Investor visa exists for citizens of countries that maintain a treaty of commerce and navigation with the United States. It enables an individual to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. This classification can be utilized by foreign nationals of treaty countries in the medical profession to establish and open their own practice in the States.

GREEN CARD APPLICATIONS

Our attorneys are also adept at analyzing green card options for health care professionals. U.S. immigration law provides foreign nationals with a variety of ways to become lawful permanent residents through employment in the United States:

PERM Labor Certifications

Labor certification is the standard route for obtaining an employment-based green card. U.S. employers must demonstrate that there are no minimally qualified U.S. workers for a given position. The Department of Labor (DOL) must certify this application in order for an employer to be able to apply for a green card for a foreign employee.

Applications are processed under a program called Program Electronic Review Management (PERM). Labor certification applications under PERM require a full-time employee, a permanent job offer, reasonable job requirements, and pay of the prevailing wage or higher for the job’s occupational classification.

EB-1 extraordinary ability applications

EB-1 visas are available to foreign nationals that can demonstrate exceptional abilities in their field. This category is of primary preference. EB-1A and EB-1B visas are most relevant to those in the medical field. EB-1A visas are for those who can demonstrate extraordinary ability in designated fields, including the sciences. A major asset of the EB-1A category is that applicants may self-petition and do not need an offer of employment to apply. EB-1B visas are designated for outstanding researchers and professors.

While a major benefit of these categories is their relatively broad nature, USCIS sets out stringent guidelines and evidentiary criteria that must be met.

EB-2 National Interest Waivers

EB-2 visas are of secondary preference after the EB-1 category. Generally this category requires an offer of employment and PERM Labor Certification; however, some individuals may qualify for a National Interest Waiver (NIW). The NIW allows an EB-2 visa without an offer of employment or PERM Labor Certification. To obtain an NIW, an applicant bears the burden of demonstrating that the United States would gain a greater benefit from waiving the EB-2 requirements than enforcing them.

Although the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Physicians meet a specific set of criteria:

  • an applicant must be a J-1 physician in pediatrics, internal medicine, obstetrics, psychiatry, or family medicine;
  • an applicant must sign an agreement to work for at least 5 years in one of the above practices;
  • an applicant must to work in one of the following areas:
    • Health Professional Shortage Area
    • Mental Health Professional Area
    • Medically Underserved Area
    • Veterans Affair facility; and,
  • an applicant must have a statement from a government agency or the state department of health stating that the applicant’s qualifications demonstrate the benefit to the public interest.

Schedule A Green Card Applications

Schedule A green cards provide an accelerated option for professional nurses and physical therapists looking to reside permanently in the United States. Currently, this application applies only to these two professions. To qualify for this accelerated processing, a professional nurse must have either passed the Commission on Graduates in Foreign Nursing Schools (CGFNS) examination or must hold a full and unrestricted license to practice professional nursing in the state of intended employment. A physical therapist must possess all the qualifications necessary to take the physical therapist licensing examination in the state in which he or she proposes to practice physical therapy. The major benefit of this option is a green card can be obtained without going through the entire labor certification process, which cuts down the processing time significantly.

Berardi Immigration Law represents numerous clients in the medical field and provides an individualized approach for each client. If you study or work in the medical field and are considering immigration to the United States, please contact our office to schedule a consultation with one of our attorneys today!

212(e) Home Residency Requirement for J-1 Status Holders

Foreign Medical Graduates that enter the U.S. in J-1 status to receive graduate medical education or training, such as to complete their residency or a specialty fellowship, are automatically subject to the Immigration and Nationality Act (“INA”) 212(e), otherwise known as the two-year foreign residence requirement. INA 212(e) requires a J-1 visitor to return to the country in which the alien was a national and resident, or the country where they were a legal permanent resident prior to the beginning of their J-1 status.  The J-1 status holder must fulfil two years residence and physical residence requirement prior to being eligible to receive L-1 or H-1B visas or receive a green card. The purpose of the two-year foreign home residency requirement is not always clear to J-1 status holders.  J-1 status was created for cultural exchange visitors, and is meant for foreign nationals to participate in work-and study-based exchange visitor programs in the U.S.  Foreign nationals come to the U.S. to work and study in a specific field, such as medicine, and then take that knowledge back to their home country. Not all J-1 status holders are subject to INA 212(e).  You may be subject to the two-year foreign home […]
Continue Reading

O-1 Category for Physicians

O-1 Category for Physicians The O-1 visa is a nonimmigrant visa available to foreign nationals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or to foreign nationals who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.  Physicians would fall within the primary eligibility criteria as foreign nationals who possess extraordinary ability in the sciences. To qualify for an O-1 visa, a foreign national must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.  Extraordinary ability in the field of science is defined as a level of expertise indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor. Before the issuance of an H-1B or L visa, the INA 212(e) requires a J-1 visitor to return to the country in which the alien was a national and resident, or the country where they were a legal permanent resident prior to the beginning of their J-1 status.  However, the O-1 visa does not […]
Continue Reading

Definition of Cap-Exempt H-1B

The U.S. government has limited the issuance of new H-1B visas to 65,000 per fiscal year, also known as the “cap.”  Petitioning Employers may submit a new H-1B Petition on April 1st for employment to begin on October 1st.  Usually, the demand for new H-1B visas far exceeds 65,000 and the submitted Petitions are entered into a lottery for selection and adjudication. However, certain H-1B Petitioning Employers are “cap-exempt”, meaning that their Petitions are not subject to the numerical limitation and as such, new employees can begin at any time during the year. Cap-exempt Petitioning Employers must be either: An accredited institution of higher education in the United States; A non-profit research or government organization; or A non-profit organization associated with an accredited institution of higher education. The first two categories are straightforward, requiring that the Petitioning Employer evidence their accreditation or non-profit research status and the H-1B Petition will be considered cap-exempt. The third category, under which many medical professionals fall, has a bit more nuance. In order to apply for Cap Exempt H-1B status, the Petitioning Employer must be able to prove that: It is a non-profit entity, such as through its IRS tax status and incorporation documentations; […]
Continue Reading

J-1 Physician Waiver Options

J-1 Waivers Foreign Medical Graduates that enter the U.S. in J-1 status to receive graduate medical education or training, such as to complete their residency or specialty fellowship, are automatically subject to the Immigration and Nationality Act (“INA”) 212(e), otherwise known as the two-year foreign residence requirement. INA 212(e) requires a J-1 visitor to return to the country in which the alien was a national and resident, or the country where they were a legal permanent resident prior to the beginning of their J-1 status.  The J-1 status holder must fulfil two years residence and physical residence requirement prior to being eligible to receive L-1 or H-1B visas. However, J-1 status holders have several options to waiver the two-year foreign home residency requirement: Conrad State 30 Waiver: Each state is able to issue up to 30 waivers to J-1 status holders who will work full-time for three years in an underserved area.  Each state has slightly different requirements for the process, but generally the J-1 doctor must enter into a signed contract with a healthcare facility to offer services in an area that has been designated as a Health Professional Shortage Area (“HPSA”), Medically Underserved Area (“MUA”), or Medically Underserved […]
Continue Reading