There is a whirlwind of issues currently affecting international medical graduates (“IMGs”), issues which will impact their ability to obtain temporary work authorization (including J-1 waivers and H-1B visas) and permanent resident status. Below is a quick update of recent developments at the state and federal levels. These issues and more will be addressed at the Wolfsdorf Immigration Law Group’s Immigration Workshop for Physicians on January 29, 2011 at Roosevelt Hospital in New York City.
- H-1B Cap Exemption Complications: As the remaining cap-subject H-1B visa numbers rapidly decrease, hospitals employing physicians and other health professionals may no longer qualify for exemptions to the numerical cap based on a petitioner’s affiliation with an institution of higher education. The Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) recently issued a decision finding that a teaching hospital that provides clinical training for nurses enrolled at an institution of higher education, but is a separately controlled and operated entity from the institution of higher education, is not an exempt employer from the H-1B cap. AAO, WAC-09-059-50704 (Oct. 15, 2010).
While this will not impact J-1 physicians who are granted Conrad State 30 waivers because they have a personal exemption from the cap, this decision will seriously limit the employment options for J-1 physicians who obtain a different kind of waiver and physicians who undertake graduate medical training in H-1B. The precise nature of the relationship of the sponsoring employer to the institution of higher education will be critical to the determination of whether the petitioner qualifies for the numerical cap exemption.
- Conrad Waiver State 30 Update: Many states, including Florida, Michigan, and Illinois, have filled all 30 waiver slots for Fiscal Year 2011. Remember, even if a state where you are interested in working no longer has any numbers available, there are unlimited federal waivers that may be available in that state.
- PERMs for Medical Residents and Fellows: Over two years ago, the Dept. of Labor and USCIS made a radical departure from decades of precedent, deciding that a medical resident or fellow position does not quality as a “permanent” offer of employment for PERM labor certification purposes. This issue was recently before the Board of Alien Labor Certification Appeals (BALCA). On November 30, 2010, BALCA declined to decide the issue, dismissing all evidence submitted on appeal and directing the parties to confer. BALCA gave the parties a deadline of December 2, 2010 to file a joint report, but there have yet to be any further developments.
This lack of guidance leaves thousands of physicians in a precarious situation, particularly those who risk maxing out on their H-1B while still in their training. Residents and fellows who are confronted with this problem should contact a Wolfsdorf attorney to explore creative solutions.
- Hardship Waiver Approvals Soaring… Following almost three years of consistent, hard-fought battles to obtain hardship waivers for J-1s, the California Service Center is finally taking a reasonable approach to adjudicating these applications. Recent filings have received outright approvals in less than 3 months, compared with 2008 and 2009 during which CSC would take close to 6 months to issue an onerous request for further evidence (RFE).
- …and so are RFEs on H-1Bs: USCIS is routinely issuing detailed RFEs which question the employer-employee relationship in connection with H-1B petitions filed on behalf hospitalist physicians. While the majority of these RFEs can be addressed and overcome through competent lawyering, physicians accepting positions as hospitalists and their sponsoring employers should take this potential for delay into account when planning the timeline for filing an H-1B.