How to
contact us

xx

Publications from Borene Law Firm, P. A.


Articles


 

DR. YES - SOME PRACTICAL STRATEGIES FOR THE PRIVATE

 DIAGNOSIS AND TREATMENT OF IMMIGRANT VISA CASES OF

 HEALTH CARE PROFESSIONALS

By

Scott M. Borene*

 I.          INTRODUCTION

             This article suggests a technique for the evaluation of alternative immigrant visa strategies for health care professionals.  Particular emphasis is given to developing permanent immigration options that avoid the need for individual labor certification and that prevent or alleviate INA 212(e) two-year home residence problems.  The article includes a list of the 44 most frequently certified health care occupations of SVP 6 or higher (See Exhibit 1) and a checklist, (ranked in approximate order of desirability), of 25 permanent immigration options for health care professionals that do not require conventional labor certification (See Exhibit 2).

             The discussion of the alternatives to individual labor certification, and the article as a whole, assume a high level of understanding of immigration law generally and a particular familiarity with all of the current employment-based immigrant visa categories, the labor certification process, and the special rules applicable to physicians, Registered Nurses (RNs), physical therapists, and "foreign medical graduates", including their uniquely difficult problems with 212(e) requirements and the special licensing and credentialing issues relating to physicians.

             For an excellent survey of issues related to foreign physicians, see Robert D. Aronson's article "Strategies for Nonimmigrant Foreign Physicians" and George S. Newman's article "Selected Considerations in Counseling of Foreign Physicians Seeking Immigrant Visas", both included in AILA , II 1992-93 Immigration and Nationality Law Handbook (R. Murphy, ed.) and Robert Aronson's article "Immigration Strategy and Practice for Physicians", 91-3 Immigration Briefings (March 1991).

            For a comprehensive discussion of issues involving Registered Nurses, see Sylvia J. Boecker's article "Professional Nurses: Nonimmigrant and Immigrant Visas" included in AILA, II 1992-93 Immigration and Nationality Law Handbook (R. Murphy, ed.) and Robert Hopper's article "Immigration Issues for Professional Nurses", 91-7 Immigration Briefings (July 1991).

 

            The health care industry as discussed in this article is broadly defined, including not only primary clinical service providers such as hospitals, but also private, non-profit, and public sector employers, large and small, in the allied fields of medical research, education, pharmaceuticals, and biotechnology.  Typical employers include major medical centers such as the Mayo Clinic and Massachusetts General Hospital; pharmaceutical companies such as Eli Lilly or Ciba-Geigy; large medical technology companies such as Medtronic and Genentech; nursing homes, community hospitals, and tens of thousands of smaller enterprises organized as biotech start-ups, clinics, or self-employed professionals.  Health care professionals include the fast-growing legions of ancillary and "emerging professional" occupations such as therapists, counselors, technicians, and researchers (both bench and clinical) and biomedical personnel as well as the growing number of physicians and nurses needed to satisfy the burgeoning demands of U.S. society for ever-higher levels of "high tech and high touch" health care.


 

II.        THE GROWING IMPORTANCE OF HEALTH CARE OCCUPATIONS IN IMMIGRATION PRACTICE

 

            A.        Economic Context of the Labor Market for U.S. Health Care Workers

                         Health care in America is big business.  In fact, in recent years it has been the runaway fastest-growing part of the U.S. economy.  Currently, U.S. health care spending has climbed to more than $700 billion per year, comprising 14 percent of U.S. GNP in 1992.[1]  Moreover, health care spending appears to be virtually immune to economic recession.  For the past few years, in good times or bad, health care spending has been increasing at a rate in excess of 10 percent per year.[2]  To put this in perspective, note that the entire U.S. Defense budget for fiscal year 1992 totaled "only" $320 billion, and it is decreasing.[3]  In 1991, Budget Director Richard Darman testified to the U.S. Senate Finance Committee that "Total health spending ... is currently projected to reach 17 percent by the year 2000 and 37 percent of GNP by 2030."[4]

                         Approximately 90 percent of U.S. health care money is spent on personal health care.[5]  High-tech medicine and expensive new drugs notwithstanding, the single largest component of personal health care spending is labor.  In other words, America's primary health care providers and their suppliers use most of that money "to meet the payroll" of their rapidly expanding labor force employed in health care occupations.

                         Since slowing further increases in health care costs is the number one issue on the national economic agenda, and since the cost of labor is the main component of health care expense, it appears probable that national health care policy will eventually come round to the position that a fundamental factor driving up U.S. health care costs is the scarcity of health care workers relative to demand and that a good way to reduce unit labor costs while improving the quality of service, (and coincidentally increase total employment), is to increase the supply of qualified health care workers in the U.S. labor force.

             Unfortunately, there is a colossal mismatch between the present skills of unemployed U.S. workers and the needs of health care employers.  The U.S. has too many unemployed factory workers with high school educations, or less, and too few Registered Nurses and other scientifically educated workers.  If the U.S. domestic labor market does not produce enough appropriately skilled health care workers, the only way to avoid rapidly escalating labor costs in the face of rapidly increasing demand for health care services is to increase the supply of health care workers from outside the U.S.

                         In other words, to help control health care costs, the U.S. government and U.S. employers will find it increasingly economically advantageous to facilitate the immigration to the U.S. of large numbers of skilled health care workers, as MDs, RNs and in many other health care occupations.  This short-driven demand for immigrant health care professionals is likely to continue until there is a massive improvement in the education level of the U.S. labor force, a national project of enormous scope which will require years of work once undertaken and which is only now being planned.

             B.        A Case in Point:  The Registered Nurse Shortage

             The way that the U.S. has dealt with the scarcity of Registered Nurses is instructive.  It has been estimated         that there is today in the United States a shortage of some 200,000 RNs relative to employer demand.  See S. Boecker, "Professional Nurses: Nonimmigrant and Immigrant Visas" in AILA, II 1992-93 Immigration and Nationality Law Handbook (R. Murphy, ed.).  One might expect that the ease of finding employment would attract increasing numbers of people into the field.  Amazingly, in spite of rising salary levels and intensive domestic nursing recruitment, the number of U.S.-trained nursing graduates actually declined more than 20 percent in the five-year period from 1984 (80,000 RNs graduated) to 1989 (62,000 RNs graduated).[6]

                         In 1990, employment of RNs in the U.S. totaled 1,727,000.[7]  The U.S. Bureau of Labor Statistics projects an increase in total employment for RNs to 2,648,000 by 2005.[8]  In other words, in the next 12 years the U.S. will need to add approximately 1,000,000 new RNs while training barely 700,000 in U.S. nursing schools.  When added to the current nurse shortage of 200,000, the projection indicates a total labor market shortfall of 500,000, or up to 40,000 RNs per year for the next 12 years.  Schedule A, Group I is likely to be heavily used.  20 CFR 656.10(a)(2)(ii).

             C.        Other Health Care Occupations in Demand

                         The RN situation is dramatic, but not unique.  Many other health care occupations are poised for similarly rapid escalation in market demand.  Of the ten Fastest Growing Occupations for the period 1990 to 2005 identified by the U.S. Department of Labor (DOL) no fewer than seven are in health care.  (Home health aides #1, personal and home care aides #4, physical therapists #5, medical assistants #6, human services workers #8, radiologic technologists and technicians #9 and medical secretaries #10.)[9]

                         Already, a substantial share of all individual labor certifications are in health care occupations.  Of the 308 most frequently certified occupations with an SVP of 6 or higher, 44 are in healthcare-related fields.  See Exhibit 1.[10]

                         Moreover, five of the ten occupations selected by the DOL in its proposed rule designating new critical shortage occupations pursuant to IMMACT 90's Labor Market Information Pilot Program are in biomedical/health-related fields.[11]  Now scheduled to join RNs and physical therapists for favored DOL treatment are biological scientists, chemists, medical technologists, primary care physicians and special education teachers.

             D.        Critical Interests of Employers and Their Communities

             As immigration clients, health care employers and the communities they serve have a lot at stake in their immigration projects.  This is especially true in cases involving clinical physicians in under-served areas.  Resourceful, speedy and effective representation can provide substantial economic and patient-care benefits to the community.  Avoidable delays and pursuit of poorly planned or stillborn strategies can have an immediate and serious economic impact on health care employers and their small, often rural, communities.  Frequently the local hospital is one of the community's larger employers.  Even in remote areas it is not unusual for the addition of an MD to a small hospital or clinic to affect the employer's aggregate revenues substantially.  Time is money.  Even a brief delay (or advance) in bringing an MD on line could mean significant lost (or gained) revenue for the employer.  More importantly, the quality of available medical care directly affects the lives of the patients in the clinic's service area.

 

III.       WHO IS A HEALTH CARE PROFESSIONAL?

             Health care professionals are not only physicians.  In fact, the great majority of health care occupations and the fastest growing occupations are the myriad support positions involved in modern hospital-based medicine.  For example, the Mayo Clinic in Rochester, Minnesota and its affiliated local hospitals, which together comprise the world's largest private medical center, employ altogether over 15,000 people, but barely 1,000 are staff physicians, a ratio of 15:1.[12]  Even if medical residents are included, the ratio of administrative and allied health personnel to physicians is still on the order of 7:1, i.e. seven other staff to each MD.[13]

             In addition to Schedule A RNs and physical therapists, many other health care occupations are the basis of employment-based immigrant visa petitions.  The most commonly used labor certification categories for higher level health care workers are set out at Exhibit 1.  Since all of the occupations listed are coded SVP 6 or higher, potentially all of them could escape the 10,000 annual cap of the dreaded "other worker" category.  INA 203(b)(3), 8 USC . 1153(b)(3).

 

IV.       SOME SUGGESTED STRATEGIES FOR DEALING WITH INA 212(e) PROBLEMS OF HEALTH CARE PROFESSIONALS

             A.        Prevention: Alternatives to J-1 for Medical Residents

             Few problems are as vexing to immigration lawyers and their clients as the  212(e) two-year home residence rule as applied to physicians.  INA 212(e), 8 USC 1182(e).  The problem is one for which an ounce of prevention is worth many pounds of cure.  Because of the difficulty in obtaining 212(e) waivers for physicians and the career-disrupting effects of living outside the U.S. for a minimum of two years, unquestionably the best way to deal with 212(e) is to avoid becoming subject to it in the first place.

                         Unfortunately, immigration attorneys too rarely have the opportunity to counsel prospective J-1 "Foreign Medical Graduates" (FMGs) before they accept Educational Commission for Foreign Medical Graduates (ECFMG) J-1 sponsorship and impale themselves firmly on the 212(e) "hook".  Also, regrettably, in many cases ECFMG sponsorship may be the only viable alternative.  Nevertheless, if an FMG client has not yet become subject to 212(e), the strongest possible consideration should be given to non-J-1 alternatives including the following:

 

                        CAVEAT: Immigration attorneys should proceed with great caution in this area, taking full notice that immigration issues, while crucial, are not the only issues that require attention.  An option that is permissible under immigration rules may still have serious, collateral problems which rule out its use in a particular case.  For example, a federal statute prohibits Medicare/Medicaid reimbursement for medical services performed by an FMG trainee in a house officer training program unless the FMG has passed FMGEMS.  42 USC 1395, ww(h)(4)(D).  Also, training obtained by an FMG who has not passed FMGEMS may not be usable for medical specialty board certification in many cases.

 

                        1.         H-1B - IMMACT 90 and the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 Pub. L. No. 102-232, 105 Stat. 1733 (MTINA) have created the possibility for some physicians to pursue medical residencies as H-1B's.[14]

 

                        2.         J-2 - An FMG may undertake a medical residency as a J-2 nonimmigrant without ECFMG sponsorship.

 

                        3.         Asylee - A physician may also pursue a medical residency as a pending asylum applicant.  Even if the asylum case is abandoned or ultimately denied, the client may be able to complete the residency without ever having been an ECFMG sponsored J-1, and thus avoid 212(e) problems.

 

                        4.         Other Statuses That Provide Unrestricted Employment Authorization -In principle, any immigration category that provides unrestricted employment authorization and that the residency program can live with could be an alternative to ECFMG sponsorship as a J-1.  See 8 CFR 274a.12.

 

                        5.         LPR - In appropriate cases, consider the option of seeking permanent residence first, before undertaking a medical residency.  If the MD client has a relatively quick way to properly obtain LPR status through one of the options listed in part VI, the client may wish to defer the medical residency until a later date.  For example, an MD engaged to a USC who chooses to begin a medical residency as a J-1 before the wedding could pay a high price for his impatience.

 

             B.        Cure: Alternative Techniques to Satisfy 212(e)

 

                        In addition to the conventional solutions to 212(e) problems for P.L. 94-484[15] physicians (i.e. ECFMG-sponsored J-1's pursuing Graduate Medical Education and Training) -- (1) Extreme Hardship Waiver, (2) Anticipated Persecution Waiver, (3) Interested Government Agency Waiver, (4) going home for 2 years, and in the case of non-P.L. 94-484 physicians, the fifth solution, (5) No Objection Based Waiver[16] ‑‑ consider the following:

 

                        1.         AA-1 - If either the principal or the principal's spouse is lottery eligible, seek the automatic waiver provided to AA-1 based immigrants.  22 CFR 43.17. See the discussion at immigration option 4 in part VI below.

 

                        2.         Derivative USC Claim - If the physician was actually a USC while doing a residency, 212(e) isn't applicable.  See the discussion at immigration option 1 in part VI below.

 

                        3.         Native American Ancestor Based LPR 8 CFR, Part 289 - If the physician was actually in LPR status while doing J-1 residency, 212(e) doesn't apply.  See immigration option 3 in part VI below.

 

                        4.         PRC Executive Order - If the MD is eligible for benefits under the terms of the President's Executive Order for protection of certain Chinese nationals, an automatic waiver of 212(e) can be obtained by any application for change of status or adjustment of status submitted before December 31, 1993.  Executive Order 12711 (Apr. 11, 1990).

 

                        5.         Installment Plan - There is no requirement that the 2 year home country residence must be continuous.  Even physicians subject to 212(e) are eligible to apply for any kind of nonimmigrant visa except H or L.  INA 212(e), 8 USC 1182(e).  In appropriate cases, a physician may wish to satisfy the 24 month requirement in installments of perhaps 4 months a year over a period of 6 years and to enter the U.S. in other nonimmigrant categories until 212(e) is satisfied.

 

V.        A SUGGESTED METHOD FOR DEVELOPMENT OF IMMIGRANT VISA OPTIONS FOR HEALTH CARE PROFESSIONALS

 

            A.        Dx-Diagnosis (Prepare the Case Plan)

 

                        Step 1. - History (Get the Facts)

 

                                    The short prescription for successful casework is - "plan the work, then

                        work the plan."  No case should be undertaken without a thorough understanding of the relevant facts derived in most cases from an in-person interview with the client.  At a minimum, the discussion needs to include a complete history of all the client's lifetime contacts with U.S. immigration authorities and consular offices, a review of all documents still in the client's possession that have ever been received from or shown to immigration or consular officials, a review of family immigration history including at least parents and grandparents for both the principal and the principal's spouse, a detailed summary of any problems with the police in any country in the world ever, marital history, prospective changes in marital status, a review of the client's activities at all times present in the U.S., travel plans for the next 12 months, as well as the basic biographical details of the client's education and work experience.

 

                        Step 2. - Mind the Client's P's and Q's (Plans and Qualifications)

 

                                    a.         Mind the Client's P's (Plans)

 

                                                Next, focus on the client's plans and goals, personal and career,  short-term and long-term.  The following question can be useful in the initial interview: "Let's pretend for a moment that there were no such thing as immigration laws, what ideally would you like to do during the next few years and where would you like to do it?"

 

                                    b.         Mind the Client's Q's (Qualifications)

 

                                                Examine in detail the client's present and prospective qualifications.  Include work experience, education, licenses, references, credentials, special skills, etc.

 

                        Step 3. - Identify Immigration Issues

 

                                    Drawing upon the attorney's full knowledge and experience of immigration law and practice and the facts presented by the client, counsel should carefully note any collateral immigration issues that may need to be addressed.  For example, are there any past misrepresentation issues or latent visa or status irregularities that could become a problem? If a waiver of excludability for the principal or any accompanying family members may be necessary, what are the prospects and plans for dealing with that issue?  How might the client's international travel plans complicate the handling of the case, or present opportunities to expedite or simplify it?

 

                                    The specific strategy for dealing with all immigration issues squarely raised by the case should be an integral part of the overall case plan.  Additionally, all potential additional immigration issues that can be identified should at least be noted and some thought given to contingency plans to address the issues if they do arise.

 

                        Step 4. - List Case Treatment Options

 

                                    List the specific case options that could be supported by the facts.  While preparing this inventory of options, consulting a systematic checklist of case options or mentally reviewing alternatives can be useful.  See part VI below.

 

                        Step 5. - Rx-Recommend a Case Plan

 

                                    Consider each of the alternatives selected, analyzing and comparing them carefully as to probability of success, likely time required to complete, estimated cost, likelihood of collateral problems, conformity to the client's plans and goals, and compatibility with other options.  Consider whether to pursue more than one option and whether multiple options can or should be pursued consecutively or simultaneously.  Consider ranking the options selected in order of desirability.  Plan A, Plan B, etc.

 

                                    Discuss the options with the client.  Make a recommendation as to how to proceed.  Get the client's informed consent to the options chosen.

 

            B.        Tx-Treatment (Implement the Case Plan)

 

            Diligently execute to completion the case plan selected, monitoring case progress and modifying the case plan as necessary in light of changes in the law or the facts that present additional problems or opportunities.

 

VI.       25 PERMANENT IMMIGRATION OPTIONS FOR HEALTH CARE PROFESSIONALS THAT DO NOT REQUIRE A CONVENTIONAL LABOR CERTIFICATION (Ranked in approximate order of desirability)

 

            In most permanent immigration cases, the client will be better served if resort to a conventionally processed labor certification is the last option rather than the first or only option seriously considered.  The main disadvantages to the client in relying exclusively on a conventional labor certification are the lost opportunities to obtain permanent residence in other ways that may be faster, simpler, more reliable, or less expensive.  Before filing an individual labor certification in any case, rule out or consider as additional options the following:

 

 

OPTION 1.    Possible Derivative USC Claim for the Principal or Principal's Spouse

 

            Occasionally a client will contact counsel seeking assistance in getting employment authorization or permanent residence and wind up successfully pursuing an immediate claim to U.S. citizenship.  Depending on the effective date of the citizenship, this can even be a way to obviate the need for dealing with a 212(e) problem.  This is especially important to look for in cases involving Canadian nationals.  Counsel also must consider the spouse's ancestors as possible USC claimants.

 

OPTION 2.    Possible Derivative Claim to USC for the Parents of the Principal or the Parents of the Principal's Spouse Combined with a Family Based First Preference for the Principal or Family Based Third Preference for the Principal or the Principal's Spouse IMMACT 90, 112.

 

            If the client is eligible, this option is certainly more attractive that any employment-based alternative.  The principal drawback is the possible delay in immigrant visa (IV) issuance due to priority date backlogs.  If the main alternative is an 18-month individual labor certification, however likely to be approved, this option is frequently better.  If time is of the essence it still may make sense to pursue this option while simultaneously pursuing employment-based options to provide a back-up or to possibly win a race to the IV finish line.

 

OPTION 3.    Possible LPR Claim through Native American Ancestor for the Principal or the Principal's Spouse 8 CFR, Part 289.

 

            Again, this is something to look for, particularly in cases involving Canadian nationals.

 

OPTION 4.    AA-1 for the Principal or the Principal's Spouse IMMACT 90, 132.

 

            This is possibly the most elegant and efficient solution to a "Foreign Medical Graduate" case imaginable.  It should be routinely considered in every IV case where the applicant or spouse is from an eligible country.

 

            Note that in some AA-1 eligible countries, including for example Ireland, descendants of an Irish national may retain claims to Irish nationality for a second or third generation born outside the country.  Before deciding an AA-1 application is not possible, remember to check for AA-1- eligible ancestors, and to consider an aggressive interpretation of the Department of State's (DOS) cross-chargeability rules when applying in AA-1 cases.  The only downside is, of course, the uncertainty.  Still, the odds aren't that bad, and somebody has to win.  In 1992 the DOS reported a total of only 807,152 properly filed AA-1 applications, from which a total of approximately 30,000 non-Irish winners were to be selected.  Dept. of State Visa Bulletin, (Nov. 1992).  This translates to raw odds of approximately 1:30.  If an AA-1 eligible husband and wife both file, the odds approach 1:15.  If they both apply every year for 5 years, odds could approach 1:3.

  

OPTION 5.    Possible Immediate Relative Visa Eligibility for the Principal or the Principal's Spouse INA 201(b)(2)(A)(i), 8 USC 1151(b)(2)(A)(i).

 

            This is of course the classic alternative to labor certification.  Don't overlook the spouse's possible eligibility, or the need for a family based Second Preference Petition for the non-PR spouse if the spouse is the immediate relative.

 

OPTION 6.    PRC Legalization for the Principal or the Principal's Spouse "The Chinese Student Protection Act of 1992", P.L. 102-404.

 

            This is another excellent option, like the AA-1 option, for a "double play" involving a physician.  Obtain an automatic waiver of 212(e) and LPR in one move.  Even a third country national with a PRC legalization-eligible fiance may be able to benefit.  If the yet-to-be-drafted regulations for this program permit it, it may even be possible for a non-PRC spouse married after the PRC national's eligibility but before IV issuance to accompany the PRC national in the move to LPR.

 

OPTION 7.    Schedule A, Group I as RN or Physical Therapist for the Principal or the Principal's Spouse 20 CFR 656.10.

 

            Theoretically, this is an excellent option for a foreign MD.  Most foreign MDs should find it easier to get licensed as an RN than as an MD.  In practice, this seems to work better when the principal's spouse is the Schedule A applicant, because it is unlikely that an MD will be willing to work as a nurse.  Whether because of ego, career concerns, or for other reasons, it appears that few physicians are willing to work as nurses despite the potential immigration benefits.

 

OPTION 8.    Soviet Scientist Act Eligibility for the Principal or the Principal's Spouse "Soviet Scientist Immigration Act of 1992", P.L. 102-509.

 

            This program was targeted at scientists who had been doing defense work for the Soviet military, but the statutory language is broader than that.

 

OPTION 9.    EB-1(C) Multinational Executive or Manager for the Principal or the Principal's Spouse INA 203 (b)(1)(C), 8 USC  1153(b)(1)(C).

 

            This could present interesting opportunities for foreign health care professionals including physicians who were principals in proprietary clinics or other enterprises outside the U.S.  If the family has sufficient capital and enough lead time, consider the possibility of establishing a new enterprise with offices and staff both inside and outside the U.S. with the principal's spouse as the CEO based outside the U.S.  After one year, the executive spouse may be transferred to the U.S. to assume a position as executive in charge of U.S.-based operations.  The new CEO, of course, can bring their accompanying MD spouse into the U.S. as a derivative beneficiary.

  

OPTION 10.  EB-1 (A) Extraordinary Ability with Self-Sponsorship for the Principal or the Principal's Spouse INA 203(b)(1)(A), 8 USC 1153(b)(1)(A).

             An advantage here is that no U.S. employer is needed.  This should be considered in every case where the client or the client's spouse is extraordinarily accomplished at something that they do.  The area of "extraordinary ability" need not be their exclusive career.  Consider the "average" MD who happens to be, or to be married to, the first class poet or athlete.  Note that contrary to popular perception, this category is not limited to Nobel Prize winners.  The regulations speak of the "small percentage" of those who are at the top of their field.  8 CFR 204.5(h)(2).  Note that it is does not say "fraction of one percent" or "one percent" but "percentage".  What is a "small percentage"? One percent? Ten percent? less than 50 percent? See generally in AILA, Employment-Based Immigration, New Law and Strategies (R. Steel & M. Patrick eds., 1992).  If there is documentation to prove that the client is a big enough fish in a small enough pond, these cases can be won.  Consider this as an adjunct with other options.

 

OPTION 11.  EB-1(A) Extraordinary Ability with U.S. Employer or Institutional Sponsorship for the Principal or the Principal's Spouse INA 203(b)(1)(A), 8 USC 1153(b)(1)(A).

 

            Similar to option 10, but the presence of a strong U.S. employer or institutional sponsor can add greatly to the strength of the candidate.  After all, how is an Immigration Examiner supposed to distinguish a world-class or excellent biophysicist from one who is merely "above average"? The "borrowed credibility" or "extraordinariness by association" conveyed by a strong supporting letter from a Mayo Clinic or a Stanford University Medical School can go a long way in demonstrating that the candidate really is "extraordinary."

 

            Finally, with respect to all the "extraordinary" and "exceptional ability" categories it is important to remember that the general intent was to benefit prospectively U.S. society and that the emphasis is on Extraordinary Ability and Exceptional Ability.  A track record of exceptional achievement is, of course, necessary, but the categories could be better used for the "rising stars" of the world than as a retirement program for "over the hill" celebrities.  In most cases, Nobel prize winners, like professional athletes in the Hall of Fame, do not receive their principal recognition until 10 or 20 years or more after they have passed their most productive years.  The challenge for the immigration lawyer is how to document the case for the 35-year-old Dr. Salk or the 30-year-old Einstein.  The fundamental public policy purpose of this law will be better served by facilitating the immigration of the best and the brightest younger candidates who have their most fruitful and productive years still ahead of them, than by turning America into a living museum of geriatric superstars.  While poorly documented or marginal applications should be avoided in all cases, counsel should not be overly fearful about submitting very carefully-documented applications for Extraordinary and Exceptional younger applicants who meet the statutory and regulatory criteria.

 

OPTION 12.  EB-1(B) Outstanding Professor or Researcher for the Principal or the Principal's Spouse INA 203(b)(1)(B), 8 USC 1153(b)(1)(B).

             Note that the researcher category does not necessarily require a Ph.D. or any particular level of formal education.  Many MDs may have opportunities in medical research or teaching.

 

OPTION 13.  EB-2 Advanced Degree Professional or Exceptional Ability (Self-Sponsored) with National Interest Waiver for the Principal or the Principal's Spouse INA 203(b)(2), 8 USC 1153(b)(2).

 

            Note the interesting possibility of a self-sponsored physician or other traditionally self-employed advanced degree professional applying with a request for a small "n" national interest waiver based on economic importance to the community (hospital jobs?) or local interests (rural health care in a medically under-served area?).  In a November 16, 1992 letter, Northern Service Center Director James Bailey opined that what was described as "small n" national interest is sufficient and that an indirect benefit through local action may be sufficient to qualify for a waiver.[17]

 

            Note that the express language of the statute extends EB-2 benefits to advanced degree holders in the "professions" or exceptional ability aliens in "sciences, arts, or business" whose services in the "sciences, arts, professions, or business" are sought by a U.S. employer (emphasis added).  INA 203(b)(2), 8 USC 1153(b)(2).  Note also that the statutory national interest waiver provision uses exactly parallel language waiving the prior paragraph's requirement of a job offer "in the sciences, arts, professions, or business."  (emphasis added) INA 203(b)(2), 8 USC 1153(b)(2).  The statute appears to permit a "national interest" waiver in the case of a self-employed advanced degree holder.  Although, initial INS regulations adopted a narrower interpretation appearing to omit advanced degree holders from the national interest waiver option, the INS by a letter dated July 20, 1992 has confirmed that advanced degree professionals may indeed qualify for national interest waivers.  8 CFR 204.5(k)(1)and 8 CFR 204.5(k)(4)(ii) and letter from Lawrence J. Weinig, Acting Asst. Comm. for Adjudications to Kenneth Stern (Jul. 20, 1992) reprinted as Exhibit 3 below.

 

OPTION 14.  EB-2 Exceptional Ability (Employer or Institutional Sponsor) with National Interest Waiver for the Principal or the Principal's Spouse INA 203(b)(2), 8 USC 1153(b)(2).

 

            Similar to, but not as accessible as option 13, because full-time employer is required.

 

OPTION 15.  EB-4 Special Immigrant for the Principal or the Principal's Spouse INA 203(b)(4), 8 USC 1153(b)(4).

 

            Note that some religious workers do health care work.  Counsel should ask about the client's religious affiliation and the religious affiliations, if any, of their employer institutions to determine threshold eligibility.

 

OPTION 16.  EB-5 Employment Creation Visa for the Principal or the Principal's Spouse INA 203(b)(5), 8 USC 1153(b)(5).

 

            This rarely used category is only for the deep of pocket.  Nevertheless, consider its possible application for a medical services or other enterprise with the foreign MD or spouse as principal investor.

 

OPTION 17.  Schedule A, Group II "Exceptional Ability" plus EB 3 or Higher for the Principal or the Principal's Spouse 20 CFR 656.10.

 

            Another bite at the apple for those who have full-time U.S. employers and high level ability.  Primarily because of the requirements that the beneficiary have a full-time employer and that the employer require a person of "exceptional ability" to do the job, this is probably a more difficult standard to meet than Extraordinary Ability EB-1(A), EB-2 "national interest", or EB-1(B), outstanding professor or researcher, but it can easily be included as part of a multi-petition strategy when any of those categories are also being attempted.

 

OPTION 18.  EB-3 or Higher and DOL Special Handling (College or University Teacher) for the Principal or the Principal's Spouse 20 CFR 656.21(a).

 

            The main advantage of this option over a conventional labor certification is, of course, that the employer need only prove that the applicant is the best qualified candidate identified through its normal recruitment process.  The main disadvantage relative to the higher ranked alternatives is time.  In many areas of the U.S., even special handling labor certifications can take 6-12 months or longer to complete.  By comparison, at most times in the past year, EB-1(A), (B), or (C) or EB-2 based I-140 Petitions have generally been adjudicated in 6 weeks or less.

 

OPTION 19.  EB-3 Or Higher and DOL Special Handling (Artist, Entertainer, or Athlete) for the Principal or the Principal's Spouse 20 CFR 656.21(a).

 

            For suggestions for these cases see the excellent article by R. Patrick Murphy and Jerald B. Serviss "Immigration Visas for Entertainers, Athletes, and Artists" included in AILA Employment-Based Immigration: New Law and Strategies (R. Steel & M. Patrick, eds. 1992).

 

OPTION 20.  EB-3 or Higher (Reduced or Waived Recruitment) for the Principal or the Principal's Spouse

 

            In many cases involving medical personnel, especially for physicians in rural areas, waived or reduced recruitment should be considered.  Often, the employer can document extensive and expensive "physician recruitment" efforts for months or years preceding the job offer to the foreign candidate.

 

OPTION 21.  Political Asylum or Refugee Status for the Principal or the Principal's Spouse

 

            Note that a "nonfrivolous" application for asylum can provide employment authorization for a foreign physician.  Even if the client's asylum application is abandoned or ultimately denied, the client may be able to complete the residency without ever being an ECFMG sponsored J-1 and thereby avoid 212(e) problems.

 

OPTION 22.  Special Hong Kong IV for the Principal or the Principal's Spouse IMMACT 90 124

 

            Extremely limited eligibility, but if the shoe fits, wear it.

 

OPTION 23.  EB-2 Advanced Degree Professional or Exceptional Ability plus National Interest Waiver (Business Owner) for the Principal or the Principal's Spouse  INA 203(b)(2), 8 USC 1153(b)(2).

 

            Similar to options 13 and 14, but with a business ownership as the basis for the national interest waiver.  Interestingly, in the first AAU decision to address the issue of "national interest" waivers, "improving health care" is explicitly identified as one of seven enumerated factors that could be considered in applying the national interest test to an alien of exceptional ability in business.  See Matter of (name not provided), EAC 92 091 50126 (AAU July 21, 1992) reprinted in AILA Employment-Based Immigration: New Laws and Strategies 213 (R. Steel & M. Patrick, eds. 1992).

 

OPTION 24.  Naturalization for LPR Parent of the Principal or the Principal's Spouse and then Family Based First Preference for the Principal or Family Based Third Preference for the Principal or the Principal's Spouse INA 203(a)(1), 8 USC 1153(a)(1); INA 203(a)(3), 8 USC 1153(a)(3).

 

            The LPR parent of the principal or the LPR parent of the principal's spouse can naturalize to USC status, then file for family-based first preference for their unmarried son or daughter, or family-based third preference for their married son or daughter.

 

            This can easily be made a part of a multiple-track immigration strategy.  For example, this family-based option can be combined with a conventional labor certification to provide a simultaneous back-up immigration path in case delays or problems arise with the labor certification process.

 

OPTION 25.  LPR for Mother or Father of the Principal through IR Sponsorship by the USC Brother or Sister of the Principal or Any Other LPR Options, plus Family Based Second Preference (Unmarried Son or Daughter of LPR) for the Principal INA 203(a)(2), 8 USC 1153(a)(2).

 

            The USC brother or sister of the principal could sponsor the principal's mother or father for LPR as an immediate relative, then the mother or father could sponsor the principal as a family based second preference immigrant (unmarried son or daughter of an LPR parent).  This would work equally well if the principal's parent is eligible for quick LPR through some other pathway, (e.g. Schedule A, Labor Market Information Pilot Program, etc.).

 

VII.     CONCLUSION  RX:  BE RESOURCEFUL.  CONSIDER ALL THE OPTIONS.

 

            Before filing that next ETA 750, consider the alternatives, including the extraordinary, exceptional and outstanding categories.  Not every ugly duckling is a nascent swan, but some are, and the best immigration lawyers can help them be recognized for what they are.


 

 

PRIVATE EXHIBIT 1

 

LIST OF 44 FREQUENTLY CERTIFIED HEALTH CARE OCCUPATIONS (SVP 6 or higher) (Arranged by SVP Code)**

 

 

SVP 6 (1 to 2 years)

SVP 8 (4 to 10 years)

Acupuncturist

Anesthesiologist

Dental Assistant

Biochemist

Home Health Technician

Biophysicist

Medical Assistant

Director, Research and Development

Mental Retardation Aide

General Practitioner, Medical

Nurse, Licensed Practical

Faculty Member, College/University

Optician (dispensing)

Geneticist

Recreational Therapist

Microbiologist

Respiratory  Therapist

Pathologist

Research Assistant II

Pharmacologist

Scientific Helper

Physiologist

 

Psychologist, Clinical

 

Psychologist, Experimental

 

Psychologist, Educational

 

Surgeon I

 

Toxicologist

 

Vocational Rehabilitation Counselor

 

 

SVP 7 (2 to 4 years)

SVP 9 (Over 10 years)

Acupressurist

Editor, Technical and Scientific

Counselor

Publications

Educational Therapist

Internist

Medical Technologist

 

Pharmacist

 

Physician Assistant

 

Psychologist, Developmental

 

Psychometrist

 

Radiologic Technologist

 

Social Worker

 

Teacher (Blind)

 

Teacher (Deaf)

 

Teacher (Handicapped)

 

Teacher (Mentally Retarded)

 

EXHIBIT 2

 

FAST RELIEF:  CHECKLIST OF 25 PERMANENT IMMIGRATION OPTIONS FOR HEALTH CARE PROFESSIONALS THAT DO NOT REQUIRE A CONVENTIONAL LABOR CERTIFICATION***

 

1.     Possible Derivative USC Claim for the Principal or the Principal's Spouse

 

2.     Possible Derivative Claim to USC for Parents of Principal or Parents of Principal's Spouse Combined with Family Based First Preference for the Principal or Family Based Third Preference for the Principal or Principal's Spouse

 

3.     Possible LPR Claim through Native American Ancestor for the Principal or the Principal's Spouse

 

4.     AA-1 for the Principal or the Principal's Spouse

 

5.     Possible Immediate Relative Visa Eligibility for the Principal or the Principal's Spouse

 

6.     PRC Legalization for the Principal or the Principal's Spouse

 

7.     Schedule A, Group I as RN or Physical Therapist for the Principal or the Principal's Spouse

 

8.     Soviet Scientist Act Eligibility for the Principal or the Principal's Spouse

 

9.     EB-1(C) Multinational Executive or Manager for the Principal or the Principal's Spouse

 

10.   EB-1(A) Extraordinary Ability with Self-Sponsorship for the Principal or the Principal's Spouse

 

11.   EB-1(A) Extraordinary Ability with U.S. Employer or Institutional Sponsorship for the Principal or the Principal's Spouse

 

12.   EB-1(B) Outstanding Professor or Researcher for the Principal or the Principal's Spouse

 

13.   EB-2 Advanced Degree Professional or Exceptional Ability (Self-Sponsored) with National Interest Waiver for the Principal or the Principal's Spouse

 

14.   EB-2 Exceptional Ability (Employer or Institutional Sponsor) with National Interest Waiver for the Principal or the Principal's Spouse

 

15.   EB-4 Special Immigrant for the Principal or the Principal's Spouse

 

16.   EB-5 Employment Creation Visa for the Principal or the Principal's Spouse

 

17.   Schedule A, Group II "Exceptional Ability" plus EB-3 or Higher for the Principal or the Principal's Spouse

 

18.   EB-3 or higher and DOL Special Handling (College or University Teacher) for the Principal or the Principal's Spouse

 

19.   EB-3 or Higher and DOL Special Handling (Artist, Entertainer, or Athlete) for the Principal or the Principal's Spouse

 

20.   EB-3 or Higher (Reduced or Waived Recruitment) for the Principal or the Principal's Spouse

 

21.   Political Asylum or Refugee Status for the Principal or the Principal's Spouse

 

22.   Special Hong Kong IV for the Principal or the Principal's Spouse

 

23.   EB-2 Advanced Degree Professional or Exceptional Ability plus National Interest Waiver (Business Owner) for the Principal or the Principal's Spouse

 

24.   Naturalization for LPR Parent of the Principal or the Principal's Spouse and then Family Based First Preference for the Principal or Family Based Third Preference for the Principal or the Principal's Spouse

 

25.   LPR for Mother or Father of the Principal Through IR Sponsorship by the USC Brother or Sister of the Principal or other LPR Options, plus Family Based Second Preference (Unmarried Son or Daughter of the LPR) for the Principal.

 


 

                                                                    EXHIBIT 3

 

 

                                                                                    U.S. Department of Justice    JUL 27 1992

 

                                                                                    Immigration and Naturalization Service

                                   

 

                                                                                                            CO 204-24-C

______________________________________________________________________________

 

                                                                                                                               425 Eye Street N.W.

                                                                                                                               Washington, D.C.  20536

 

                                                                                    20 JUL 1992

                                   

Kenneth H, Stern, Esq.

50 South Steele Street

Suite 1050

Denver, CO  80209

 

Dear Mr. Stern:

 

Thank you for your letter of June 16 regarding the eligibility of alien professionals holding advanced degrees for the job offer waiver found at section 203(b)(2)(B) of the Immigration and Nationality Act, as amended by the "Miscellaneous and Technical Immigration and Naturalization Amendments of 1991."

 

We advised our field offices of this change by memorandum of April 28.  Thus, petitions may be filed by professionals holding advanced degrees (or by anyone in their behalf) who can demonstrate that they qualify in the national interest for the job offer (labor certification) waiver.  Our regulations will be amended accordingly.

 

Sincerely,

 

 

 

Lawrence J. Weinig

Acting Assistant Commissioner

Adjudications

 

 

 

 

 

 

 

 

 

The above letter is a reproduction of the original official letter forwarded to Kenneth H. Stern by the U.S. Immigration and Naturalization Service, date stamped July 20, 1992, and July 27, 1992.


 

     * Scott M. Borene practices immigration law with the Borene Law Firm, P.A. in Minneapolis, concentrating on employment-related immigration matters. A graduate of Harvard University and Minnesota's William Mitchell law school, he currently serves as Chair of AILA's Minnesota - Dakotas Chapter.

     [1] New York Times, page 1, column 3, Jan. 23, 1993 and "Health Care Expenditures" The Universal Almanac 1993, 203 (J. Wright, Gen. Ed.).

     [2] "Health Care Expenditures", supra note 1.

     [3] Table No. 495. "Federal Outlays, by Detailed Function: 1980 to 1992", Statistical Abstract of the United States 1992 (112th Ed.) U.S Department of Commerce.

     [4] Supra note 2.

     [5] Id.

     [6] Table No. 158, "Physicians, Dentists and Nurses: 1970 to 1989", supra note 3.

     [7] Table No. 630 "Civilian Employment in Occupations with the Largest Job Growth and in the Fastest Growing and Fastest Declining Occupations: 1990 and 2005", supra note 3.

     [8] Id.

     [9] "Fastest Growing Occupations, 1990-2005" Source: Bureau of Labor Statistics, U.S. Department of Labor, as reported in The World Almanac and Book of Facts 1993 (Pharos Books) 152.

     [10] The list in Appendix A is adapted from Steven A. Clark's compilation "Frequently Certified Occupations -Listed by SVP Codes", published as Appendix 4, in AILA Employment Based Immigration, New Law and New Strategies, (R. Steel & M. Patrick, eds.) Steven Clark's permission for this adaptation is gratefully acknowledged.

     [11] 58 Fed. Reg. 15242 (Mar. 19, 1993) (proposed rule); Immigration Act of 1990, 122, Pub. L. No. 101-649, 104 Stat. 4978 (hereinafter "IMMACT 90").

     [12] Mayo Foundation, Mayo "Facts" (1991).

     [13] Id.

     [14] See 8 CFR 214.2 (h)(4)(viii) previously published as INS Interim Final Regulations at 57 Fed. Reg. 12177-79 (Apr. 9, 1992) and the articles by G. Newman and R. Aronson cited in the introduction. For a good discussion of H-1B physicians see Carl Shusterman's article, "Obtaining H-1A and H-1B Classification for Health-Related Occupations" included in AILA, Representing Professionals Before the Department of Labor, (S. Clark, ed. 1992) and Robert Aronson's article, "Strategies for Nonimmigrant Foreign Physicians" included in AILA, II 1992-93 Immigration and Nationality Law Handbook, (R. Murphy, ed.).

     [15] Health Professions Educational Assistance Act of 1976, P.L. 94-484, 90 Stat 2243.

     [16] See generally, INA 212(e), 8 USC 1182(e).

     [17]          Letter from NSC Director James Bailey to Frank Retman dated November 16, 1992 reprinted in AILA Employment Based Immigration, New Law and New Strategies. 209 (R. Steel & M. Patrick, eds., 1992).

     **          This list is adapted from Steven A. Clark's compilation "Frequently Certified Occupations - Listed by SVP Codes", published in AILA Employment Based Immigration, New Law and New Strategies, (R. Steel & M. Patrick, eds. 1992) (Steven Clark's permission for this adaptation is gratefully acknowledged).

     *** Copyright 1993, Scott M. Borene, Esq.  All rights reserved.  Reprinted with permission.

 

 

 

 

 

 


Borene Law Firm, P. A.
Immigration Law Group
3950 IDS Center
Minneapolis, Minnesota 55402
United States of America
Telephone 612.321.0082
Fax 612.332.8368

 

Copyright 2012 Borene Law Firm, P.A. All rights reserved.
Revised: July 23, 2014.