Curran & Berger LLP

Under U.S. immigration law, foreign physicians are subject to a variety of requirements and limitations in obtaining visas to work or reside in the U.S. In choosing from several visa options, doctors confront conflicting interests between employer and employee, exacting requirements, and complex clauses and waivers. However, with skilled and knowledgeable representation, a physician's case has a good chance of success.

The most common temporary visas for physicians are the J-1 "graduate medical education or training" visa and the H-1B employer-sponsored visa. However, some may have the option of applying for an O-1 "extraordinary ability" visa, and those from Canada or Mexico are sometimes eligible for a TN-1 visa.  

The J-1 visa is often the primary preference of the physician's employer. It does not require sponsorship or record keeping on the part of the employer, the institution has no liability in the case, and there are no prevailing wage or employee notification requirements. However, a J-1 visa is far more restricting for the physician than an H-1B. A physician on a J-1 visa has little flexibility in terms of the length of the visa. The possibility of changing programs or moonlighting is very limited. Finally, the J-1 visa requires that the physician return to their country of origin for a period of two years before he/she can be eligible for an H-1B visa or permanent residence. This is referred to as the 212(e) two-year home residence requirement.    

However, there is a possibility that the physician will be eligible for a waiver of the two-year home residence requirement of the J-1 visa through state and federal programs. To address the severe shortage of physicians in some areas of the country, immigration law provides for a waiver for physicians who practice clinically in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) for at least three years on an H-1B visa. Waivers are generally distributed by state governments (a maximum of 30 waivers per state are distributed every year), by the Veterans Administration, the Appalachian Regional Commission, the Department of Health and Human Services and the Delta Regional Authority can also grant waivers for service in a shortage area. Each state and federal program has specific requirements concerning the physician's field, the hours worked and the area served.

Doctors who are primarily involved in research, as opposed to clinical practice, can also receive a waiver from a government agency. An application containing the physician's credentials, a summary of the research and its importance, and evidence of the physician's indispensability to the continuation of the research must be submitted to the U.S. Department of Health and Human Services' Exchange Visitor Waiver Review Board. The Department of Health and Human Services may then recommend approval of the waiver to the Department of Homeland Security.

Very occasionally, physicians may also qualify for a persecution waiver or an exceptional hardship waiver. If a physician would be returning to the probability of persecution in the country of origin, he/she may be eligible for a persecution waiver. If the physician's United States Citizen or permanent resident spouse and/or child would suffer more than the expected amount of hardship by returning to the country of origin or by staying in the United States without the physician, that physician may be eligible for an exceptional hardship waiver. It should be emphasized that both of these waivers are highly selective.

Because of the limitations and the two-year home residence requirement that accompanies the J-1 visa, most physicians prefer the H-1B visa. The physician must have passed the first three sections of the United States Medical Licensing Examination (USMLE) to qualify for an H-1B. However, it does require more responsibility and liability from the employer, along with additional fees. There is also a yearly quota on H-1B visas to which most employers are subject, unless affiliated with an institution of higher education. 

A third visa option is the O-1 visa, initially granted for up to three years and eligible for unlimited yearlong extensions. To qualify for this visa the physician must obtain employer sponsorship and prove that he/she is among the best in his/her field.

Finally, physicians from Mexico or Canada can enter with a TN-1 visa.  If the doctor graduated from a US medical school, he or she can practice clinically with the TN-1. Those who graduated from a foreign medical school are only granted a TN for teaching or research.