Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Executive Summary
Each year physicians from foreign countries seek to enter the United States to study in the hope that they will be employed in the United States upon completion of their studies. Often what they perceive as a small violation of U.S. immigration laws or procedural rules may shatter their hopes of employment in the United States.
Mistake 1 Starting the Visa Process Too Late
Foreign physicians often wait until late in their temporary authorized status before they begin to consider their options for seeking U.S. resident status.
Action Step Even if the physician is initially not interested in remaining in the United States, he or she would be well advised to explore at the earliest opportunity the options available for remaining in the country. In particular, the physician should learn the projected length of time needed to meet the requirements for each option.
Mistake 2 Entering the United States under a “J” Exchange Visitor Program
Foreign physicians often enter the United States under an exchange visitor (J) visa. Under the J visa program, meeting the foreign residency requirement in almost all situations involving physicians requires that they return to their home country for two years, unless they obtain a waiver.
Action Step Foreign physicians should explore other visa opportunities before entering the United States on a J visa classification. In particular, they should consider “H-1B” or “O” visa classifications, among others.
Mistake 3 Consulting Legal Counsel Too Late
Foreign physicians often start the visa process on their own, only to find that the process is much more involved and complex than they initially thought it would be. Often, they will not choose the best option, thereby losing significant and critical time or locking themselves into a bad situation.
Action Step Foreign physicians should confer with experienced counsel before starting any visa process.
Mistake 4 Moonlighting
To increase their experience and to augment their income, foreign physicians often obtain employment in addition to their primary employment (moonlight). For many visa classifications, including “H,” working for an employer other than the petitioning employer is not permitted. To work for a second employer, filing a second petition with the Bureau of Citizenship and Immigration Services is often required.
Action Step Foreign physicians should know the limitations of their visa classification. Before taking a second job, they should determine the limitations of their current visa classification.
Mistake 5 Missing Important Dates
Foreign physicians often miss important immigration dates, such as passport, status, employment, and visa expiration dates.
Action Step Foreign physicians should keep a log of all of the important dates relating to their authorized stay in the United States, as well as the important dates for their family members. They should initiate action to extend any expiring dates six months before those dates expire.
Mistake 6 Mistaking an Extension of Stay for a Visa Extension
Foreign physicians often believe that an extension of stay also extends the validity of their visa. An extension of stay permits a foreign physician to remain in the United States; a visa extension permits the physician to travel to the United States.
Action Step Before departing the United States, physicians should review their passport and visa validity dates. If either has expired, they will not be permitted to return to the United States until those dates have been extended.
Mistake 7 Entering the United States on a J Visa without Knowing How to Obtain a Waiver of the Home Residency Requirement
Many foreign physicians enter the United States on an exchange visitor (J) visa or change to it after entering the country without fully understanding the home residency rule (two years abroad in their native country) and the difficulty of obtaining a waiver to the home residency requirement. A diversity (lottery) visa does not eliminate the home residency requirement.
Action Step Foreign physicians should fully explore their future eligibility for obtaining a waiver of the home residency requirement before entering a J visa program. They should understand their potential eligibility for waiver opportunities afforded under possible persecution, hardship, interested government agency, national interest, or “State 30” status. Foreign physicians should be aware that they are not eligible for a waiver based on a “no objection letter.”
Mistake 8 Accepting a Waiver for Working in a Medically Underserved Area Without Fully Understanding the Restrictions
Foreign physicians are often unaware of the requirements and restrictions placed on physicians seeking a waiver of the home residency requirement. To obtain the benefit of this waiver, the following must occur:
- The physician must agree to work full-time in a health professional shortage area (HPSA) or for the Veterans Administration (VA);
- A federal agency or state public health department has to determine that the work is in the public interest;
- The physician must work full-time for an aggregate of five years (not including time on J-1) before he or she is eligible for adjustment of status or an immigrant visa; and
- The five years must be completed within a six-year period from the time the physician is employment authorized (or if the physician is already employment authorized, from the time of the approval of the visa petition).
Action Step Petitions and adjustment of status applications can be filed before the date that the five-year service is completed. Waivers approved before Nov. 12, 1999, are unaffected; waivers filed before Nov. 1, 1998, are approved if the physician has worked full-time for three years in a shortage area. To support a national interest waiver, a physician must present with the visa petition:
- A contract of employment (or if self-employed, an attestation);
- Evidence of employment in an HPSA or the VA and in a specialty designated by the U.S. Department of Health and Human Services as an HPSA;
- A letter dated within six months of filing the petition from a federal agency or from the department of public health of the state in which the physician will be working attesting that the physician’s work is in the public interest;
- Evidence that the physician meets the admissibility requirements regarding the United States Medical Licensing Examination; and
- Evidence to support the waiver, if applicable.
Mistake 9 Failing to Realize That Many Areas of Specialization Are Ineligible for a Waiver Under National Interest or State 30 Waivers
Foreign physicians often enter specialized practice without realizing that many national interest and State 30 waivers do not include many areas of specialization.
Action Step Before entering into an area of specialization, foreign physicians should consider the effect of doing so on obtaining a waiver under national interest or a State 30 waiver. Usually, waivers are limited to physicians practicing in family or general medicine, pediatrics, general internal medicine, ob/gyn, and psychiatry.
Mistake 10 Traveling During the Adjustment of Status Application Process
Foreign physicians often travel abroad during the adjustment of status process. Doing so may, in certain situations, automatically void the pending adjustment application.
Action Step Before traveling abroad during the adjustment of status process, foreign physicians should ensure that they are fully maintaining status, or they should secure advance parole authorization.
Conclusion
Foreign physicians who are considering employment possibilities in the United States should be aware that U.S. immigration law and procedures are very restrictive. Foreign physicians who intend to seek employment in the United States should become familiar with the nuances of these laws and procedures early in the process.
Written by:
Robert Brown, Esq.
Peer reviewed by:
M. Terrell Menefee, Esq.
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them