Immigration Opportunities for Clinical Doctors H Ronald Klasko

Immigration Opportunities for Clinical Doctors H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd. , 17 th Floor Philadelphia, PA 19103 215. 825. 8600 317 Madison Ave. , Suite 1518 New York, NY 10017 212. 796. 8840 www. klaskolaw. com rklasko@klaskolaw. com

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

H-1 B Visas n Basic requirements Job Offer q Prevailing Wage q USMLE 1, 2 and 3 q License q n n n n Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Spouses Travel Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Quota n What is it, and what does it mean? q n Separate quota for US-educated advanced degree holders q n n 20, 000 visas Separate options for Canada, Mexico, Australia, Chile and Singapore q n 65, 000 visas TN-1, E-3, H-1 B 1 Prospects for change Timing q q April 1 filing date October 1 start date Klasko, Rulon, Stock & Seltzer, LLP

Quota-Exempt Employment n Who is not subject to the quota? q Universities q Nonprofit institutions affiliated with universities q Employed “at” university q Nonprofit or government research organization q Concurrent employment q Previous H-1 B Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Visas n Length of approval and extensions q 3 year initial approval and 3 year extension q 6 year maximum – any combination of employers q Extensions beyond 6 years Recapture time out of U. S. n 1 year extension if file labor certification application or immigrant petition one year before expiration n 3 year extension if immigrant petition approved and quota backlog n Klasko, Rulon, Stock & Seltzer, LLP

Avoiding Need for J-1 Waiver n Medical Doctors (cont’d) q No 2 year return requirement if: Not medical education or training n Observation, consultation, teaching or research with incidental patient care under direct supervision of U. S. doctor n ECFMG research fellowship n Klasko, Rulon, Stock & Seltzer, LLP

Visa Options Without Needing Waiver n Anything other than H or L visa or change of status q O-1, TN-1 (non-clinical), E-3 ok q Canadian doctor H-1 B visa-exempt entry ok? q Change of status from F-1 (or other) to H-1 B ok q Labor certification and I-140 can be approved DS 230 can be filed n I-485 cannot be filed (except clinical NIW) n Klasko, Rulon, Stock & Seltzer, LLP

Fulfilling Two-Year Return Requirement n n Return to country of nationality or last residence? Can fulfill sequentially Klasko, Rulon, Stock & Seltzer, LLP

Interested Government Agency Waivers n General q Choosing between research track and clinical track q Research track Usually through HHS n Peer review process – unlike CIS filings n Do not need 3 years in H-1 B? n Klasko, Rulon, Stock & Seltzer, LLP

HHS Waivers n Key Issues q Importance of research program n Does not have to be NIH funded q Essentiality and uniqueness of foreign national n Recruitment (unavailability of U. S. researchers) q Future of program and future of foreign national q Bench research (at least 30 hours per week) vs. clinical research q Excellence of foreign national’s research Klasko, Rulon, Stock & Seltzer, LLP

HHS Waivers (cont’d) n Other Issues q Involvement of NIH scientists familiar with the research q Reconsideration of denials q Impact of Fulbright funding q Timing Klasko, Rulon, Stock & Seltzer, LLP

Other Medical Research Waivers n n Usually limited to agency contracts, grants or research programs Examples include DOD, NASA, DOE and DOI Klasko, Rulon, Stock & Seltzer, LLP

Obtaining a J-1 Waiver n Clinical Track q Choosing state vs. federal agency q Choosing between states q Cannot file more than one q HPSA or MUA or FLEX 10 or V. A. q Must be 3 years in H-1 B n “Extraordinary circumstances” to change employers Klasko, Rulon, Stock & Seltzer, LLP

Obtaining a J-1 Waiver n Timing issues q Vary by state q Vary by federal agency q 3 steps q When to start q Options if J-1 expiring O-1 n J-1 extension? n Leave U. S. n Klasko, Rulon, Stock & Seltzer, LLP (cont’d)

Conrad 30 Waivers n Must be HPSA or MUA q Except FLEX 10 n Agree to begin employment within 90 days of receiving waiver q Can delay if still in training program q Can expedite by filing H-1 B before CIS approves waiver Klasko, Rulon, Stock & Seltzer, LLP

Conrad 30 Waivers (cont’d) n Differences between states q Timing q Recruitment required q When/how choose 30? q Primary care? Speciality? Subspecialty? q Use of FLEX 10 Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers n Issues in common q 40 hours in HPSA or MUA n Except VA q Primary care General practice, family practice, internal medicine, psychiatry, pediatrics, OBGYN n Except VA and DRA n Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers (cont’d) q Recruitment q Facility must provide medical care to Medicaid/Medicare-eligible and indigent uninsured patients q No non-compete clauses Klasko, Rulon, Stock & Seltzer, LLP

Federal Government Agency Waivers n V. A. Waivers q 3 levels of approvals q National and internal recruitment q At least 5/8 appointment q O-1 must wait 2 years Klasko, Rulon, Stock & Seltzer, LLP (cont’d)

Permanent Resident Status Issues Employer-sponsored, family-sponsored or self-sponsored n Quotas/timing issues n Impact on visa status n Impact on family n Impact on travel n Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Options Family n Investment n Asylum n Lottery n Employment n Klasko, Rulon, Stock & Seltzer, LLP

Family n Spouse of U. S. citizen q No quota wait q EAD and AP within 3 months q Travel may result in loss of status unless H-1 B n All other relationships q Long quota wait q No interim benefits Klasko, Rulon, Stock & Seltzer, LLP

Investment n n $500, 000 or $1, 000 Individual investment or regional center Klasko, Rulon, Stock & Seltzer, LLP

Asylum n n Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion Klasko, Rulon, Stock & Seltzer, LLP

Lottery n n Only specified countries One year window www. travel. state. gov Effect of application on future visa applications Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment n n n Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Quotas q Visa Bulletin (www. travel. state. gov) q Per country of birth, per preference category, per fiscal year q Filing date is “priority date” q EB-1 (extraordinary ability, outstanding researcher) q No quota wait Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Quotas q EB-2 (national interest waiver and labor certification) National interest waiver n Labor certification requiring M. D. or foreign equivalent degree n No quota wait, except China and India n Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Self-Sponsored q Extraordinary ability EB-1 n Standard n National or international reputation q “One of few at the top of peers” q Key is defining field of expertise specifically q Extensive documentation required n Reference letters critical n Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) q National Interest Waiver EB-2 n Standard n Exceptional ability or advanced degree q National priority q National impact q Extensive documentation required n Reference letters critical n Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Employer-Sponsored q Outstanding Researcher/Professor EB-1 n “Permanent position” n Similar to extraordinary ability n Klasko, Rulon, Stock & Seltzer, LLP

O-1/EB-1 for Clinicians n General q Why more difficult than researchers q Can be done for residents? q Still need waiver for I-485 Klasko, Rulon, Stock & Seltzer, LLP

O-1/EB-1 for Clinicians (cont’d) n How prove extraordinary ability as a clinician? q Rare expertise in sophisticated procedures or technologies q Complicated diagnoses missed by other specialists q Unusual success rate q Novelty of procedures q “Wow” cases q Prestige of institution Klasko, Rulon, Stock & Seltzer, LLP

O-1/EB-1 for Clinicians (cont’d) q Difficult surgical procedures q Prestigious fellowships q Significance of Board certification or “Diplomate” q Judge of medical students, residents, or nurses q Grand round presentations q High salary Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Evaluating eligibility based on research q 1 st listed author publications q Impact factor? q Citations q Presentations n 1 st listed abstracts q Book chapters q Honors and awards q Manuscripts reviewer q Importance/narrowness of field of expertise q Referees Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Choosing Referees q How many? q Good C. V. ’s q Prestigious institutions q Geographical diversity n One per institution q Impartiality Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Other Factors q Not a peer review process q Importance of job title? q Importance of employer sponsorship? q File now, or wait? Klasko, Rulon, Stock & Seltzer, LLP

Clinical National Interest Waivers n n 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 q Can switch locations q Can count time before filing, but not J time before H-1 B n Can be specialist Klasko, Rulon, Stock & Seltzer, LLP

Clinical National Interest Waivers (cont’d) n Physicians can apply for permanent residence (when EB-2 available) before completing five years, but cannot be approved until completion n Requires letter from state or federal agency attesting that the physician’s work furthers the public interest Klasko, Rulon, Stock & Seltzer, LLP

Special Handling Labor Certification (PERM) n n n Employer-sponsored Must be “some classroom teaching” Nationwide competitive recruitment q n n At least one print ad “Selected” within last 18 months EB-2 Klasko, Rulon, Stock & Seltzer, LLP

Special Handling Labor Certification (PERM) (cont’d) n Can apply to attendings and other clinicians if “some classroom teaching” q Can be very small percentage q Can be teaching of residents in a classroom n Choice if selection more than 18 months ago q “Reselection” n One national print ad q Regular recruitment n Most qualified standard still applies Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Timing q Electronic filing q 10 months? q Possibility of audit q First of three steps q Importance of filing before end of 5 th year in H-1 B status Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n I-140 Petition q 1 st step for EB-1 and national interest waiver q 2 nd step for PERM n Employee documents education and experience q If adjustment of status, file concurrently with I-485 if quota current q If consular immigrant visa processing, approval sent to National Visa Center Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n I-485 (Application for Adjustment of Status to Permanent Resident) q Cannot file until quota is current q Importance of filing Do not need to maintain visa status n Can file for spouse and child n Can get Employment Authorization Document (EAD) n Klasko, Rulon, Stock & Seltzer, LLP

Permanent Resident Status Employment (cont’d) n Can get advance parole travel document Eliminate need to obtain visas q Can still maintain and extend H-1 B status q n Can leave employer if I-140 approved q I-485 pending 180 days q Similar occupation q Permanent resident upon approval n Timing and delay issues n Klasko, Rulon, Stock & Seltzer, LLP

Questions ? Klasko, Rulon, Stock & Seltzer, LLP

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 Klasko, Rulon, Stock & Seltzer, LLP