immigration opportunities immigration opportunities for clinical doctors h. ronald klasko, esq....

Immigration OpportunitiesImmigration Opportunities for Clinical Doctors

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

rklasko@klaskolaw.com www.klaskolaw.com

Klasko, Rulon, Stock & Seltzer, LLP

H. Ronald Klasko, Esq.

Ron Klasko has been providing immigration assistance and solutions to leading universities, hospitals, and research institutions for over 25 years. Ron is a past National President of the American Immigration Lawyers Association. He has been a member of the AILA Board of Governors since 1980.

His firm, which is the first immigration law firm global partner of NAFSA: Association of International Educators, is authorized counsel for the University of Texas system. The firm has been selected as one of six top tier immigration firms in the United States for three consecutive years by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners). This publication noted the firm as the “strongest in the country” when it comes to representing clients in the university research and medical sectors and recognized Ron as “a leading national practitioner who really does it all” who is “literally on the cutting edge” when it comes to immigration policy and legislative issues.

Ron has been selected as one of twelve top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 editions selected Ron as the “most highly regarded” immigration lawyer in the world.

Ron is a frequent author and lecturer on hospital and university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School. Ron is a graduate of the University of Pennsylvania School of Law.

H-1B Visas Basic requirements

Job Offer Prevailing Wage USMLE 1,2 and 3 License

Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Spouses Travel

H-1B Quota

What is it, and what does it mean? 65,000 visas

Separate quota for US-educated advanced degree holders 20,000 visas

Separate options for Canada, Mexico, Australia, Chile and Singapore TN-1, E-3, H-1B1

Prospects for change Timing

April 1 filing date October 1 start date

Quota-Exempt Employment

Who is not subject to the quota?UniversitiesNonprofit institutions affiliated with universitiesEmployed “at” universityNonprofit or government research organizationConcurrent employmentPrevious H-1B

H-1B Visas Length of approval and extensions

3 year initial approval and 3 year extension6 year maximum – any combination of

employersExtensions beyond 6 years

Recapture time out of U.S. 1 year extension if file labor certification application

or immigrant petition one year before expiration 3 year extension if immigrant petition approved and

quota backlog

Avoiding Need for J-1 Waiver

Medical DoctorsNo 2 year return requirement if:

Not medical education or training Observation, consultation, teaching or research

with incidental patient care under direct supervision of U.S. doctor

ECFMG research fellowship

(cont’d)

Visa Options Without Needing Waiver

Anything other than H or L visa or change of statusO-1, TN-1 (non-clinical), E-3 okCanadian doctor H-1B visa-exempt entry ok?Change of status from F-1 (or other) to H-1B okLabor certification and I-140 can be approved

DS230 can be filed I-485 cannot be filed (except clinical NIW)

Fulfilling Two-Year Return Requirement

Return to country of nationality or last residence? Can fulfill sequentially

Interested Government Agency Waivers

GeneralChoosing between research track and clinical

trackResearch track

Usually through HHS Peer review process – unlike CIS filings Do not need 3 years in H-1B?

HHS Waivers

Key Issues Importance of research program

Does not have to be NIH funded

Essentiality and uniqueness of foreign national Recruitment (unavailability of U.S. researchers)

Future of program and future of foreign nationalBench research (at least 30 hours per week)

vs. clinical researchExcellence of foreign national’s research

HHS Waivers

Other Issues Involvement of NIH scientists familiar with the

researchReconsideration of denials Impact of Fulbright fundingTiming

(cont’d)

Other Medical Research Waivers

Usually limited to agency contracts, grants or research programs

Examples include DOD, NASA, DOE and DOI

Obtaining a J-1 Waiver

Clinical TrackChoosing state vs. federal agencyChoosing between statesCannot file more than oneHPSA or MUA or FLEX 10 or V.A.Must be 3 years in H-1B

“Extraordinary circumstances” to change employers

Obtaining a J-1 Waiver Timing issues

Vary by stateVary by federal agency3 stepsWhen to startOptions if J-1 expiring

O-1 J-1 extension? Leave U.S.

(cont’d)

Conrad 30 Waivers

Must be HPSA or MUAExcept FLEX 10

Agree to begin employment within 90 days of receiving waiverCan delay if still in training programCan expedite by filing H-1B before CIS

approves waiver

Conrad 30 Waivers

Differences between statesTimingRecruitment requiredWhen/how choose 30?Primary care? Speciality? Subspecialty?Use of FLEX 10

(cont’d)

Federal Government Agency Waivers

Issues in common40 hours in HPSA or MUA

Except VA

Primary care General practice, family practice, internal

medicine, psychiatry, pediatrics, OBGYN Except VA and DRA

RecruitmentFacility must provide medical care to

Medicaid/Medicare-eligible and indigent uninsured patients

No non-compete clauses

(cont’d)

V.A. Waivers3 levels of approvalsNational and internal recruitmentAt least 5/8 appointmentO-1 must wait 2 years

(cont’d)

Permanent Resident Status Issues

Employer-sponsored, family-sponsored or self-sponsored

Quotas/timing issues Impact on visa status Impact on family Impact on travel

Permanent Resident Status Options

Family Investment Asylum Lottery Employment

Spouse of U.S. citizenNo quota waitEAD and AP within 3 monthsTravel may result in loss of status unless H-1B

All other relationshipsLong quota waitNo interim benefits

Family

Investment

$500,000 or $1,000,000 Individual investment or regional center

Asylum

Individualized fear of persecution Race, religion, nationality, political opinion,

social group, sexual persuasion

Lottery

Only specified countries One year window www.travel.state.gov Effect of application on future visa applications

Permanent Resident StatusEmployment

Employer-sponsored or self-sponsored Labor certification or extraordinary/national

interest/exceptional Multiple petitions

Permanent Resident StatusEmployment (cont’d)

QuotasVisa Bulletin (www.travel.state.gov)Per country of birth, per preference category,

per fiscal yearFiling date is “priority date”EB-1 (extraordinary ability, outstanding

researcher) No quota wait

QuotasEB-2 (national interest waiver and labor

certification) National interest waiver Labor certification requiring M.D. or foreign

equivalent degree No quota wait, except China and India

Self-SponsoredExtraordinary ability

EB-1 Standard

National or international reputation “One of few at the top of peers” Key is defining field of expertise specifically

Extensive documentation required Reference letters critical

National Interest Waiver EB-2 Standard

Exceptional ability or advanced degree National priority National impact

Extensive documentation required Reference letters critical

Employer-SponsoredOutstanding Researcher/Professor

EB-1 “Permanent position” Similar to extraordinary ability

O-1/EB-1 for Clinicians

GeneralWhy more difficult than researchersCan be done for residents?Still need waiver for I-485

How prove extraordinary ability as a clinician? Rare expertise in sophisticated procedures or

technologies Complicated diagnoses missed by other specialists Unusual success rate Novelty of procedures “Wow” cases Prestige of institution

(cont’d)

Difficult surgical proceduresPrestigious fellowshipsSignificance of Board certification or “Diplomate”Judge of medical students, residents, or nursesGrand round presentationsHigh salary

(cont’d)

Evaluating eligibility based on research 1st listed author publications Impact factor? Citations Presentations

1st listed abstracts Book chapters Honors and awards Manuscripts reviewer Importance/narrowness of field of expertise Referees

Choosing Referees How many? Good C.V.’s Prestigious institutions Geographical diversity

One per institution

Impartiality

Other Factors Not a peer review process Importance of job title? Importance of employer sponsorship? File now, or wait?

Clinical National Interest Waivers

Credentialing examination required except graduates of US medical school or non-clinical medical practice

Available for physicians working full time in HPSA or MUA or for a VA facility for a minimum of five years Can switch locations Can count time before filing, but not J time before H-1B

Can be specialist

Clinical National Interest Waivers

Physicians can apply for permanent residence (when EB-2 available) before completing five years, but cannot be approved until completion

Requires letter from state or federal agency attesting that the physician’s work furthers the public interest

(cont’d)

Special Handling Labor Certification (PERM)

Employer-sponsored Must be “some classroom teaching” Nationwide competitive recruitment

At least one print ad

“Selected” within last 18 months EB-2

Can apply to attendings and other clinicians if “some classroom teaching” Can be very small percentage Can be teaching of residents in a classroom

Choice if selection more than 18 months ago “Reselection”

One national print ad

Regular recruitment Most qualified standard still applies

Special Handling Labor Certification (PERM)

(cont’d)

Timing Electronic filing 10 months? Possibility of audit First of three steps Importance of filing before end of 5th year in H-1B

status

I-140 Petition 1st step for EB-1 and national interest waiver 2nd step for PERM

Employee documents education and experience If adjustment of status, file concurrently with I-485 if

quota current If consular immigrant visa processing, approval sent to

National Visa Center

I-485 (Application for Adjustment of Status to Permanent Resident)Cannot file until quota is current Importance of filing

Do not need to maintain visa status Can file for spouse and child Can get Employment Authorization Document (EAD)

Can get advance parole travel document Eliminate need to obtain visas Can still maintain and extend H-1B status

Can leave employer if I-140 approved I-485 pending 180 days Similar occupation

Permanent resident upon approval Timing and delay issues

Questions ?Questions ?

For Further Information

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

rklasko@klaskolaw.com

215-825-8600 (Philadelphia)

212-796-8840 (New York)

www.klaskolaw.com

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