According to the American Immigration Council (AIC), there are more than 247,000 physicians with medical degrees from outside the United States who practice medicine in the United States—slightly more than a quarter of all practicing physicians in the United States.
These foreign medical graduates (FMGs) have specific legal issues to address when applying for their initial work visa.
This article describes the visa process generally—there is a veritable alphabet soup of immigration terms and acronyms—and important considerations for FMGs and prospective employers to address for physicians who wish to practice medicine in the United States upon the completion of a formal training program.
The importance of FMGs
From a health care delivery perspective, FMGs play a critical role in ensuring access to care throughout the United States. For example, the AIC reports that nearly a third of all physicians in areas across the U.S. with the highest poverty rates are foreign trained. Without FMGs, many areas of the United States would have even less access to physician care.
H1B, J1 and O1 visas
Most FMGs enter the United States to complete their residency or fellowship program on the J1 visa, with a smaller number entering on the H1B visa. The J1 visa is a non-immigrant visa issued by the U.S. Department of State to research scholars, professors and exchange visitors who participate in programs that promote cultural exchange, especially to obtain medical or business training in the United States.
As an “exchange visa,” the J1 FMGs are subject to a “two-year home rule.” Under the home rule, J1 visa holders commit to return to their home countries after completion of their residency for a period of two years before they can apply for the H1B professional work visa and return to work in the United States.
If a J1 FMG desires to work in the United States prior to spending two full years abroad, the physician must first apply and obtain a waiver from the U.S. Department of State.
The only exception to the two-year home rule is the O1 visa, which is for people with extraordinary ability in their field that has been demonstrated by sustained national or international acclaim. The O1 visa requires a very high standard to qualify.
If a J1 visa holder qualifies for the O1 visa, they can change status from J1 to O1 without a waiver. Otherwise, all other J1 FMGs must first obtain a waiver or spend two years abroad before returning to work in the U.S.
There are various J1 waivers available, each with different requirements:
Conrad 30 Waiver. These are available to primary care and some specialist physicians. The Conrad 30 program permits individual states to accept up to 30 medical students per year. Requirements vary from state to state.
HHS Waiver. HHS waivers are only for primary care physicians working in locations with HPSA scores of 7+ that are:
- a health center as defined in the Public Health Service Act, and receiving a grant from the U.S. Health Resources and Services Administration; or
- a rural health clinic as defined in the Social Security Act; or
- a Native American/Alaskan Native tribal medical facility as defined by the Indian Self-Determination and Education Assistance Act
Appalachian Regional Commission (ARC). The ARC is available in Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia.
Delta Regional Authority (DRA). The DRA is available in Alabama, Arkansas, Illinois, Mississippi, Missouri, Kentucky, Louisiana and Tennessee.
Hardship Waiver. The FMG must have a qualifying USC spouse or child.
Cap-subject and cap-exempt employers
In contrast to the J1 visa, FMGs in the United States on H1B professional work visas are not subject to the two-year home rule.
Upon completion of their training program, FMGs in H1B status are eligible to file a petition with U.S. Citizenship and Immigration Services (USCIS) to change employers. However, you must confirm whether the employer is a “cap-subject” or “cap-exempt” entity to better understand when you can begin employment.
The H1B visa program allots 65,000 visas plus an additional 20,000 visas for beneficiaries with U.S. master’s or higher degrees per fiscal year via a random lottery system. FMGs are included in the total 85,000 visas.
Traditionally, the annual lottery is held the first week in April and allows H1B cap-subject employers to file visa petitions for workers to start on October 1 of the same year.
A prospective employer should initially determine whether your current H1B visa is with a cap-subject or cap-exempt entity. If you’re with a cap-subject entity, you’ve already been counted against the annual cap and are eligible to change your employer immediately. However, if your H1B is with a cap-exempt entity, and the new employer is a cap-subject entity, you would be subject to the annual lottery.
Additionally, your prospective employer must determine if they qualify as a cap-subject or cap-exempt entity for H1B purposes.
The United States immigration system is very complicated—and is the subject of intense national debate. FMGs are an important component of ensuring access in many geographic areas in multiple specialties during an era when the demand for physicians outpaces supply.
Bruce Armon is chair of Saul Ewing Arnstein & Lehr’s health care group and has worked with hundreds of physicians and employers with regard to transactional, contract, compliance and regulatory and reimbursement matters. Amy Link is a highly skilled immigration practitioner and member of the firm’s global immigration practice group, where she specializes in all employment-based immigration matters.