Physicians

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Extension of Investor Visas, Religious Visas, Conrad 30 for Physicians

Detailed question:

We are being informed that EB-5 investments in regional centers are now possible until December. The date has been extended. <br> 1) Is this true?<br> 2) Given that a green card is available years after the initial investment, in the current volatile immigration climate, how safe is an EB-5 ?

Answer:

True. The EB-5, the religious visa programs and Conrad 30 waives for foreign physicians have been extended until 8 December 2017 pursuant to H.R. 601 – Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017.

Green card through EB-5 category continues to be an option for a specific category of investors,  who have the money ($500,000 pr $1M) to invest. Under the US Constitution, the government cannot make laws that change vested rights retroactively. Therefore, if you have already invested and filed your EB-5 papers, I don't see why you need to worry about subsequent changes in the law.

Everyone with a running business outside the United States should seriously consider first the EB-1C category, which is considerably more attractive than EB-5 for several reasons. EB- 1C does not require a specific amount of investment, it requires instead only a business in the United States that is a subsidiary, branch, parent or affiliate of a foreign corporation transferring an executive or a managerial level employee to the United States. The managerial or executive employee receives an L-1A visa within a few weeks and can get a green card within a few months.

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Physician FMG applying for Cap H-1 through a cap exempt employer

Detailed question:

1. For a resident who is completing residency on Jun 30 on cap-exempt H-1B visa and has a job offer from a hospital that is cap-exempt because it is non-profit and has affiliation with a medical school for training, can the employer be requested to first apply for a cap-subject H-1B visa on April 1? <br> 2. If the lottery does not come through, can hospital apply subsequently for cap-exempt? Are there any risks with this approach?<br> 3. Is a start date of July 1 possible with cap-subject?

Answer:

Watch the Video on this FAQ: Physician FMG applying for Cap H-1 through a cap exempt employer

Video Transcript:

1. My guess is they can. You can also have the employers' lawyers look into it or your lawyers look into it including making a phone call to the USCIS. Document what they have to say and if they say yes, then there is no problem, but if they say no it can be followed up further.

2. They can, later on, do a cap exemption. If you don't go through the lottery their right to do a cap exempt is already there.

3. No, it is October.

More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

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Processing Times Involved in NIW

Detailed question:

If I may verify the processing times involved in NIW. Since it falls under EB2 category, I am assuming it may be a long time before I can get my EAD card and be able to change employers. Also, I want to confirm if there could be issues if I change employers during the process - If so, I'd prefer to change my current employer before starting with it.

Answer:

You can change employers any time if you are a self-applicant and will continue to work in your stated area of national interest.  But NIW priority date will take the same time as a normal EB-2 application does.  See: http://www.immigration.com/visa-bulletin under employment-based category 2.

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Physician filing green card

Detailed question:

1. I am a Canadian physician on an H-1B (never been on J-1) which expires June 30th, 2017. I am currently doing a 2 year fellowship. I'm contemplating pursuing the physician NIW process vs EB-2 through potential employer. For EB-2, my understanding is that I need to be eligible for a full-time physician position on the day the employer submits the ad. Since I won't complete my general residency until June 30th, 2016, my potential employer cannot begin recruitment until July 1, 2016, correct?<br> 2. In your experience, is 1 year enough time to complete the EB-2 process?

Answer:

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=1852

FAQ Transcript:

Answer 1. In this context we are talking about a PERM and not the NIW. Also remember NIW is under EB-2. Most physicians fall under the EB-2 category.  Here is how a PERM can be drafted. It depends on your employers, your lawyers and you and there is no requirement that you be fully licensed. Only that you are eligible for a license, or you are at a certain level of profession shall we say maturity or advancement so it could be possible to file for a PERM depending upon what the employers requirements are and  what the state rules for licensing are to file upon even before what you believe is your eligibility. Also remember rules for giving full license to residents differ from state to state. They are not the same in every state. So you have to look at the states in which you are going to start the PERM application.

Note: Your eligibility for licensing does not have to be from when the date of recruitment begins. It has to be established the date the PERM is filed and typically recruitment can last a few months. Before that your eligibility must be perfect upon the date PERM is filed and not when the recruitment begins. 

Answer 2.  It may or may not be, very difficult to say.


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J-1 Physician in Waiver Job Applying for AOS/1-485

Detailed question:

I am a physician completing my J-1 waiver ( on H-1B now in US, waiver will finish by June 2015). My wife became a U.S. citizen few months ago and she has filed I-130 for me. If I-130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ? If I have to wait till June to apply for I-485, will I be able to get EAD right away or will I need to be on H-1 for a while I-485 is accepted ?

Answer:

 See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1320

 

FAQ Transcript

The way it works is physicians when they have J-1 they get a waiver job like Conrad 30 program or through veteran's administration any one of these things. They are working on completing their waiver job typically 3 years. So the question is when can I file I-485?  This comes up very frequently in the context of physician, both when they are trying to do EB-1 or National Interest Waiver. In this case applying for his wife.  The answer is you cannot file I-485 until your 3 years of waiver is complete. Even if you file 1 day early your I-485 will be rejected. So until your waiver is complete you cannot file I-485.

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NIW Requirements for a Specialist Physician

Detailed question:

Does the USCIS make a distinction as to whether a specialist physician works in a Medically Underserved Area vs Health Professional Shortage Area versus Physician Scarcity Area? My job falls in MUA, HPSA but not PSA , is this a problem for a specialist?

Answer:

NIW requires "You must serve either in a Health Professional Shortage Area (HPSA), Mental Health Professional Area (MHPSA – for psychiatrists only), a Medically Underserved Area (MUA), or a Veterans Affairs facility, or for specialists in a Physician Scarcity Area (PSA)."

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Marriage to US Citizen with EB AOS is pending

Detailed question:

I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

Answer:

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

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GC future job; H-1 ext. revocation upon 140 denial, etc

Detailed question:

I have just been accepted into a residency program here at a university. I am currently working in the same department as a clinical research associate on H1B since april 2006, they have applied for my permanent residency in EB-2 for the same position and I am on 7th year H1B valid till nov 2009. My I-140 is in process and I have responded to RFE on oct 16th and have not got any reply so far. Priority date is oct 2007. The residency starts in july I think I can continue on H1B till my I-140 is pending and since my green card process is in the same department they have assured me that they will not withdraw my I-140 and that I’ll come back and work in the position of research associate after my residency(4years). Please let me know if this is legally possible as they have the intent to hire and I have the intent to join them when green card is approved.

Answer:

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.

 

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Do physicians have the right to an extension beyond 6 years for waiver jobs?

Detailed question:

Answer:

1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.

Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.

2. How to leverage the I-140 to get H-1 extensions?

Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.

3. Is an approved I-140 ground for an automatic denial of J visa?

Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.

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May physicians process GC during residency?

Detailed question:

Is it possible to start GC process during my first year medical residency if my hospital agrees. Have you dealt with cases like this.

Answer:

The essence of a green card application is that it is meant to be for a job in the future. 

Thus, where an employee is currently working or working before obtaining a green card
approval is largely irrelevant.

You must, however, be fully qualified to take the job on the date the PERM application is filed. So, if the State in which you are filing your GC, permits you to get a license to practice in 2nd year of residency, you can file only in the second year.

The process is also governed by good faith. You must have a good faith intention of joining the employer and the employer must have the intention of hiring you. Do you actually have to join the employer? Well, probably not. Look at the law on AC21.

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