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Wednesday, June 16, 2004

Physicians & Nurses: Immigration Primer - Q&A

Physicians & Nurses: Immigration Primer - Q&A

Physicians & Nurses: Immigration Primer - Q&A




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Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

Physicians & Nurses: Immigration Primer

Jennifer Wipf: Jennifer Wipf: Welcome everyone, to our Immigration Primer chat for Physicians and Nurses. I have Carl Shusterman on the phone now and will be reading him the questions you've submitted. He will respond to as many as we can manage this evening. Please remember that all questions and answers here are of a general nature and cannot be construed as legal advice.

Let's give Carl a warm welcome.

Carl Shusterman: Good evening everyone. We've had a lot of recent events concerning the immigration of physicians and nurses so let's get right to the questions.

Question #1: Hi, I am an Internist who was granted a National Interest Waiver (NIW) last year working for the Veteran's Administration. I would like to ask Mr. Shusterman to elaborate on the new Immigration and Naturalization (INS) proposal to only recognize the time served on an H-1B visa after the NIW was approved and tell us what options we have at this point. Thank you.

Carl Shusterman: Unfortunately, there's nothing new about the regulations that you refer to. They were issued by the INS on September 6, 2000. See:

http://shusterman.com/imgniwreg.html

We are representing a physician who has already served 5 years as an H-1B visa holder in the underserved area. We recently obtained the approval of a national interest waiver petition on his behalf.

Under the INS regulations, his 5-year service requirement does not begin until INS approves his national interest waiver. This means that he would have to serve an additional 5 years before he could adjust his status to permanent resident. We find this highly objectionable and not in accordance with the law. See:

http://shusterman.com/hr441-5.html,

which states that a physician must work for 5 years "in the aggregate" in order to adjust status under a national interest waiver. We plan to send a letter to the INS demanding that they grant his application for adjustment of status now rather than 5 years from now. If the agency does not comply, we will challenge the regulations in federal court. In the upcoming July issue of Shusterman's Immigration Update, we will detail the various ways in which the regulations fail to comply with the law, and what physicians who are adversely affected by the regulations must do in order to be plaintiffs in a class action law suit against the INS.

Question #2: If I join your litigation against INS and my adjustment of status for NIW is pending, and I will used up my time on H1B and I have been granted EAD, will the INS continue to reissue an EAD for me if I decide to do subspecialty training while my case is pending? FYI: I've done 5 years in underserved on H1B.

Carl Shusterman: As long as your application for adjustment of status remains pending, the INS must continue to issue you new EADs.

Question #3: Are the NIW regulations from INS finalized...is there any chance that they will adjust them according to the language of the law?

Carl Shusterman: The September 2000 regulation is an interim regulation only. You can see the comments to the regulation submitted by the American Immigration Lawyer's Association (AILA) at:

http://shusterman.com/ailamdniw.html.

There is also a letter from several senators criticizing the regulation at:

http://shusterman.com/pdf/rnmd72701.pdf.

We are hoping that our lawsuit may prompt the INS to issue final regulations which are in accordance with both the spirit and the letter of the law.

Question #4: I am doing fellowship in Cardiology on an H-1B visa and will exhaust my 6 years in 6/2004. My lawyer suggested getting a prospective employment for labor certification through RIR. I am still in my first year of training. How soon will I be eligible to apply for labor certification in cardiology job? Can I sign job for 6/2004?

Carl Shusterman: Unless your residency was in cardiology, you would not be able to qualify for labor certification as a cardiologist. Until your fellowship is completed, that is.

Question #5: I have a sister in the Philippines who passed the CGFNS exam and I am wondering if you know of any hospitals that are sponsoring nurses for immigrant visa (green card), not H1-B?

Carl Shusterman: Yes, our law firms represents over 100 hospitals, all of which are sponsoring nurses for permanent residence, and most of which will pay our legal fees. For a list of some of these hospitals, see:

http://shusterman.com/rnjobs.html

Also, our firm offers a free service where we help nurses with CGFNS for state licenses find jobs with our clients' hospitals. See:

http://shusterman.com/rn-free.html

Question #6: Hi. I got residency after a J-1 visa waiver. I just sent my papers to the INS. But my program people are stressing me to start work. can I work prior to getting permission from the INS? If I work, can I get the salary?

Carl Shusterman: No. :(

Question #7: I'm a physician applying for alien labor certification. I have been with my employer, who is sponsoring my application for the labor certification, for the last 3 years. My case has just been reviewed at the state level and forwarded to the regional labor department. My question is, at what phase of the process is it safe to go ahead and buy in for partnership in the group sponsoring my application? As soon as the 140 is filed? Approved? The adjustment of status filed? Approved? Or can I not buy in until I have my green card?

Carl Shusterman: The last option is the correct one.

Question #8: The bill to raise the Conrad Program to 30 J waivers per state was recently passed by House Judiciary Committee. What else does this bill have to go through before it finally becomes a law? Thank you.

Carl Shusterman: That bill, introduced by Congressman Moran would allow states to sponsor up to 30 physicians per year for J-waivers and would extend the life of the Conrad program for an additional two years. For this, or any other bill to become a law, it must pass the House of Representatives, the Senate, and be signed by the President of the United States. You may be interested to know that a more far reaching bill will be introduced in the Senate by Senator Brownback later this week. The Brownback bill would make the Conrad program permanent.

Question #9: I was on a J-1 visa and am now on H-1B visa and I am just about to complete 2 years. I have an approved I-140: Alien of Extraordinary Ability, (EB 11). When can I apply for adjustment of status (I-485)?

Carl Shusterman: After you have been in H-1B status and working in the medically underserved area for a total of 3 years.

Question #10: My NIW was approved already, but I'm being offered a job in another area that can sponsor my green card through labor certification. Is it risky to give up the approved NIW and use the labor certification with another employer?

Carl Shusterman: There's no reason to give up the NIW. Simply start the labor certification and keep the NIW as well.

Question #11: My I-485 was filed in 10/01 along with my approved labor certification. I have a job offer to work in a non-rural area as a neonatologist with a much higher compensation. My labor certification is for the specific work as a pediatrician in a rural area. There is no specific description for a neonatologist that I know of in the DOT book, the question is how risky is it for me to take the new job at this point? As far as the DOT book is concerned, would a neonatologist would be under the category of pediatrician since it is a subspecialty of pediatrics?

Carl Shusterman: You are referring to the 180-day portability rule; This rule provides that if the INS does not act on an application for adjustment of status within 180 days, the applicant may change employers and/or jobs as long as the new job is in the same or a similar occupation. The question here is whether a neonatologist is a similar occupation to a pediatrician. I would say that the answer is yes, and that you may switch jobs if you wish. However, you will have to assume some risk to do so since almost two years after this law was enacted, the INS has yet to issue regulations describing what the law means by "similar occupation". You may be interested in reading our January 14, 2002 chat entitled: "180 Day Portability Rule: Clearing Up Common Misconceptions".

We link to this chat at http://shusterman.com/toc-h1b.html.

Question #12: Any suggestions on how to get an employer or how do I go about approaching them myself (if this is a good idea) to sponsor me for a green card as an RN and how long would that take?

Carl Shusterman: As a registered nurse, you will find that it is easy to be sponsored by a US employer, as long as you have either of the following:

1) you have passed the examination offered by the Commission on Graduates of Foreign Nursing Schools (CGFNS), and/or

2) You have a full and unrestricted license in the state of intended employment.

If you have either of these, feel free to call either Elsa Garcia or Ann Powell, both of whom are legal assistants in our office, and will be glad to assist you in obtaining an offer of employment. Call them at (213) 623-4592. If you wish to contact a hospital directly, see our list of hospitals which sponsor RNs for permanent residence at

http://shusterman.com/rnjobs.html.

Question #13: I have an approved NIW. When should I apply for adjustment of status? I have completed 3 of the 5 year requirement.

Carl Shusterman: Immediately.

Question #14: When is the approximate time that your firm is planning to litigate against INS as posted on your site?

Carl Shusterman: We will write the "demand letter" to the INS in August, as soon as our client completes his five-year service requirement. We will ask the INS to adjudicate the application for adjustment of status within 60 days. Of course, in order to achieve class action status, many of our plaintiffs will also need to write similar demand letters. Therefore, we expect to file our complaint in federal court sometime this fall.

Question #15: Does an employer/hospital need to be labor certified to hire nurses under an H1-C visa?

Carl Shusterman: A hospital needs to have an approved "attestation" in order to petition nurses for H-1C visas.

Carl: See: http://shusterman.com/h1cfaq.html.

Question #16: Dear Sir, I am a physician resident with a J-1 visa. My husband also has a J-1 visa and I was planning to change my status from J-1 to J-2. Can I change J status in the US, or do I have to go to Canada/Mexico or my home country?

Carl Shusterman: You can change your status in the US.

Question #17: I had a consultation with your assistant, Elsa Garcia, and she told me that the premium processing for nurses may begin in June 2002. Do you know when that's going to happen?

Carl Shusterman: The INS has announced (informally) several times that I-140s would soon be added to the premium processing program. However, at the AILA conference in San Francisco last week, the INS announced that plans to add I-140s to the premium processing program have been put on hold indefinitely.

Question #18: With respect to this quote.. "who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States"; Section 212(e), INA. I came to USA, did my residency on J-1, went back to India, came back to USA on B-1, now can I apply for change of status to H-1 without a J-1 wavier as 212(e) only prohibits H-1B visa but not change of status?

Carl Shusterman: You are misreading Section 212(e). It prohibits persons from obtaining H or L status as well as permanent residence in the United States, for the set period of time. It makes no distinction between changing status, adjusting status, or obtaining a visa from abroad.

Question #19: What is the solution for licensure in individual states for registered nurses when some of these states are requiring social security numbers for licensure?

Carl Shusterman: The only solution is to obtain licensure in a state which does not require a social security number or in a state, like California, which allows an RN to use the employer tax i.d. number of her sponsoring employer. An alternate solution is to obtain licensure in a state which does not require a social security number, and then obtain a license by reciprocity in another state. You may also use a CGFNS certificate in lieu of a state license to obtain the approval of an immigrant visa petition and an application for permanent residence.

Question #20: I would like to know if there is any possibility to work as an LPN in USA once I have 3 years of education as a Nurse Technician back in Brazil. Yes or no? Should I have to get additional education to become an LPN?

Carl Shusterman: The problem with working as a Licensed Practical Nurse (LPN) is that there is no temporary visa category and in pursuing permanent residence LPNs, unlike RNs, are subject to the labor certification requirement. As a result, it is necessary to find an employer in the US who is willing to sponsor you for permanent residence, and then wait several years for you to come to the US.

Question #21: I have an approved J waiver petition from the State Dept. in DC and have filed for H-1B visa. Can I start working with my employer pending approval of the visa, assuming that it will be approved? When can I apply for green card and what is the fastest way nowadays? When can I pay the extra $1000 for expedited H-1B processing?

Carl Shusterman: You can start working after you enter the United States as an H-1B visa holder. Using premium processing will expedite this process. Regarding permanent residence, you are obligated to work in a medically underserved area for 3 years before you can achieve permanent status. You may wish to compare the benefits and responsibilities of achieving permanent residence by labor certification as opposed to applying for a national interest waiver. We cover these issues and many other issues relating to the immigration of foreign born physicians on our "Physicians Page," which is located at:

http://shusterman.com/toc-phys.html.

Jennifer Wipf: Everyone, we've had so many questions tonight, that it seems it would be a good idea to have a second chat for physicians and nurses in July. In the meantime, Carl has some announcements for you.

Carl Shusterman: I'd like to announce that in conjunction with Merritt Hawkins, we will be conducting an immigration seminar for Canadian physicians at the Crowne Plaza Hotel in Toronto, Canada on July 13th. Call Dave Faries at 800-876-0500 for further information.

Also, on October the 3rd we will be conducting a seminar for foreign born residents and fellows in New York City. Further information will be posted on our Web site in August and September.

See http://shusterman.com in a few days for the date of the July chat.

Jennifer Wipf: Mr. Shusterman's time for this evening has run out. Please join us for the rest of the questions and more in July.

Carl Shusterman: Goodnight everyone and thank you for your questions.

Jennifer Wipf: Good night everyone! I am turning moderation off now so you may chat amongst yourselves.

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