For many years the United States was closed for most foreign-born physicians. Before 1991 when the amendments to the Immigration Act of 1990 were introduced foreign-born physicians in H-1B status were permitted only to teach or conduct research in the U.S. for a public or nonprofit private educational or research institution or agency. The 1991 Amendments allow foreign medical graduates (“FMGs”) to engage in direct patient care.
The FMGs are allowed to obtain H-1B status by the following two methods:
- Pursuant to an invitation from a public or nonprofit private educational or research institution or agency to teach or conduct research;
- Pursuant to an offer of employment as a physician if the foreign doctor has passed the Federation Licensing Examination (FLEX) or its equivalent as determined by the U.S. Department of Health and Human Services (HHS)
he or she is competent in oral and written English, or is a graduate of a medical school accredited by the U.S. Department of Education.
Note: FMGs engaged in "specialty occupations" not involving patient care or teaching or research may also use the H-1B category, without the restrictions imposed for the two uses described above. This use of the category might arise for FMGs in private industry, such as a medical director at a pharmaceutical company or a researcher with a private for-profit employer.
Choosing Between H-1B or J-1 or O-1 Visa for Physicians
FMGs may opt to use the H-1B category for internships, residencies, or other temporary employment situations, and thereby avoid completing the two-year foreign residency requirement placed on all FMGs using the J-1 category, the principal alternative to the H-1B category. There are some advantages in using the J-1 category over the H-1B category, however. First, procedures applicable for obtaining J-1 status are less complex. The preference for either visa depends on individual circumstances. Alien physicians of extraordinary ability also have the option of using the O-1 nonimmigrant category. Such physicians must have sustained national or international acclaim, with extensive documentation of their achievements in the medical field. L-1 visa may also be an option for physicians being transferred from abroad within same company or organization.
The U.S. Immigration and Naturalization Service (INS) regulations provide that an FMG performing direct patient care seeking H-1B status must:
- the alien doctor must have passed the Federation Licensing Examination (FLEX) (parts I and II) or an equivalent examination;
- he or she is competent in oral or written English, as demonstrated by passage of the English language proficiency test given by the ECFMG (Educational Commission for Foreign Medical Graduates), which currently sponsors foreign doctors for graduate medical education in the J-1 category;
- he or she has a full and unrestricted license to practice medicine in a foreign state or he or she has graduated from a medical school in a foreign state; and
- he or she has a license or other authorization required by the state of intended employment to practice medicine (if the state requires such a license or authorization).
Note: requirements 1, 2, and 3 noted above need not be met by alien doctors who have graduated from U.S. medical schools. Those doctors need only show that they are graduates of U.S. medical schools and that they have a state license. Requirements 1 and 2 are also inapplicable to physicians of national or international renown. Such a physician need only show that he or she is a physician of national or international renown, that he or she meets the licensure requirements for the state of intended employment, and that he or she is a graduate of a medical school in a foreign state.
As noted, FMGs must pass the Federal Licensing Examination (FLEX) (Parts I and II) or an equivalent examination as determined by the Secretary of Health and Human Services (HHS). Equivalent examinations designated by the Secretary of Health and Human Services include the National Board of Medical Examiners certifying examinations (Parts I, II, and III) and the United States Medical Licensing Examination (steps 1, 2, and 3). Passage of some parts of acceptable examinations cannot be combined with passage of parts of other acceptable exams to establish compliance with the testing requirement.
The testing requirement applies to all FMGs including alien graduates from Canadian medical schools. In a move which could have effectively precluded most FMGs from obtaining H-1B status, the Office of the Secretariat of the USMLE recommended to individual states that a one-year U.S. post- graduate practical training requirement be imposed for applicants seeking to sit for Step 3 of the USMLE. Because most FMGs do not have a year of training in a U.S. residency program, they could not sit for Step 3 of the exam and, therefore, they could not qualify for H-1B status. Only FMGs who had some training in a U.S. residency program and who could take Step 3 (e.g., FMGs who had participated in a J-1 residency program), or FMGs who already had passed the FLEX could qualify in the H-1B category.
While Pennsylvania imposed a training requirement for admission to Step 3 of the USMLE, several states have refused to impose such a requirement. The only preconditions for admission to Step 3 of the USMLE in New York, for example, is that the individual have a application for licensure on file in the state and have passed Steps 1 and 2 of the exam; the individual need not be eligible for licensure at the time of application. Other states that do not impose a U.S. post-graduate training requirement as a condition for taking Step 3 include California, Connecticut, Florida, Louisiana, Maryland, Nebraska, South Dakota, Texas, Utah, and West Virginia. Note that Nebraska and Utah require FMGs to possess a valid, indefinite ECFMG certificate to sit for Step 3. It should be noted that this list may fluctuate, and FMGs seeking to take the exam should check directly with the individual state boards or the Federation of State Medical Boards which administers Step 3 of the USMLE. With regard to USMLE Steps 1 and 2, the FMG should contact the ECFMG.
Obtaining Temporary Working (H-1B) Status
As with all aliens seeking entry in the H-1B category, obtaining H-1B status for an FMG requires three steps:
- approval by the DOL of a labor condition application (LCA)
- approval by the INS of an H-1B petition supported by the approved LCA
- issuance by a U.S. consulate of an H-1B visa based on the approved petition
I. Step One: The Prevailing Wage Determination: before filing the LCA the employer must obtain a prevailing wage determination from a source acceptable to the DOL, and it must determine its own actual wage rate for resident positions at the job site where the FMG will work (only after documenting both the prevailing wage rate and the actual wage rate can the employer attest to payment of the "required wage rate," which is the higher of the two resulting rates of pay). The recommended way to establish the prevailing wage is to obtain a letter from the State Workforce Agency (SWA) in the state of intended employment.
II. Step Two: The Labor Condition Application: After determining the prevailing wage the employer may proceed to submit a labor condition application (LCA) to the U.S. Labor Department. In addition to the wage requirement, the LCA requires that an employer attest that:
- The physician's working conditions will not adversely affect those of U.S. physicians similarly employed.
- There is no strike or lockout of physicians at the facility.
- The employer has given notice of the filing of an LCA to its employees either by serving the bargaining representative of the physicians, or if there is no bargaining representative, by posting two notices that an LCA has been filed. The notice must advise that complaints regarding the LCA may be made to the Wage and Hour Division of the U.S. Labor Department. A copy of the LCA must be given to the physician.
By completing and submitting the LCA, and in addition by signing the LCA, the employer makes certain representations and agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B physician; these attestations are specifically identified and incorporated by reference in the LCA. The LCA contains additional attestations for certain H-1B-dependent employers and employers found to have willfully violated the H-1B program requirements; these attestations impose certain obligations to recruit U.S. workers, to offer positions to U.S. workers who are equally or better qualified than the H-1B nonimmigrant(s), and to avoid the displacement of U.S. workers (either in the employer's workforce, or in the workforce of a second employer with whom the H-1B nonimmigrant(s) is placed, where there are indicia of employment with that second employer.
III. Step Three: The H-1B Petition: The employer may submit an H-1B petition to INS once an LCA is approved. The employer must establish that both the offer of employment and the qualifications of the physician meet the standards outlined in the immigration law. The employer must demonstrate its ability to pay the appropriate wage. Documents demonstrating the physician's education, licenses, and compliance with the English and the medical examination requirements of the law and the regulations must accompany the petition.
The physician may not start working in the U.S. until the petition is approved and he has either changed his status to H-1B or has obtained an H-1B visa and entered the U.S. The physician's spouse and unmarried children under 21 years of age may be granted H-4 visas/status at the same time the H-1B visa is issued. H-4 status does not permit employment in the U.S., but does permit school attendance.
As with other H-1B aliens, FMGs may be admitted to the U.S. in H-1B status for the period of time required by the employer, up to a maximum initial period of stay of three years. Extensions of stay, up to a maximum of three additional years, are permissible, for a total period of admission of six years. Once the six-year limit is reached, the FMG must be physically present abroad for a year before he or she can return to the United States in H-1B status.
A U.S. employer may obtain permanent residence ("green card") status for an FMG if the employer can demonstrate that it is unable to locate a U.S. physician to fill the position.