International Medical Graduates (aka, foreign medical graduates) account for 325,000 of all practicing physicians in the United States or about 25% of the U.S. physician workforce. However, not all specialties are equal. In the most recent internal medicine fellowship match, the majority of endocrinology and nephrology positions were filled by international medical graduates, indicating that in the future, most endocrinologists and nephrologists in the U.S. will be international medical graduates. Almost every hospital in the nation has at least one international medical graduate on the medical staff and in many hospitals, there are more international medical graduates than U.S. medical graduates. As a result, hospitals must be familiar with the visa requirements when hiring an international medical graduate.
First, and I cannot stress this enough, get legal help. If the hospital’s in-house attorney does not have the expertise, then hire an outside immigration attorney. The cost of overlooking a seemingly minor piece of paperwork or failing to meet a filing deadline can result in the hospital no longer being able to employ a particular international medical graduate. Furthermore, immigration laws are subject to the vagaries of Congress and the U.S. Presidential office. So, the rules one year may be different than the rules the next year.
First, some definitions
There are dozens of different types of visas in the United States but only a few of them apply to physicians. Here are the most common:
J-1 visa. This is the most commonly used visa for non-U.S. citizens who went to medical school in another country. The J-1 visa is a training visa and is used by international medical graduates who do residencies and fellowships in the United States. This visa is only valid during residency and fellowship – the physician must return to his/her own country within 30 days of completing training. In addition, the physician holding a J-1 visa cannot be have any employment other than their residency or fellowship. In other words, they cannot moonlight. The maximum duration of the J-1 visa is 7 years, which allows completion of most residencies and subspecialty fellowships. After completion of their training program, the J-1 visa holder must return to practice medicine in their own country for at least 2 years, after which time, they are eligible to apply for a U.S. H-1B visa that would permit them to return to the United States to practice medicine. There is an important exception to this requirement, the “J-1 waiver”. This waiver allows the physician to stay in the U.S. to practice medicine without having to return to their own country after completing training (see below).
H-1B visa. This is a work visa and allows a foreign national physician to practice medicine in the United States for a maximum of 6 years. Requirements to obtain an H-1B visa include (1) passing all three USMLE exams, (2) meeting state medical board licensure requirements, and (3) obtaining certification by the Educational Commission for Foreign Medical Graduates (ECFMG). The physician must have completed an ACGME-certified residency and/or fellowship in the United States. Canadian physicians are unique in that completion of a Canadian residency and/or fellowship is acceptable in most states. A physician on an H-1B visa must have a sponsoring employer that files an H-1B petition on behalf of the physician and that completes a Labor Condition Application (LCA) attesting that the employer will fulfill Department of Labor prevailing wage requirements. Physicians with H-1B visas can only practice in the specific geographic location listed on the LCA. H-1B visa holders can apply for an immigrant visa which is the next step in obtaining U.S. citizenship.
Immigrant visa (“green card”). This visa allows a foreign citizen to remain permanently in the United States. After 3-5 years, an immigrant visa holder can apply to become a naturalized U.S. citizen. To obtain an immigrant visa, the international medical graduate physician must have a sponsoring employer. The employer must first submit a Permanent Labor Certification (PERM) attesting that the physician will be hired for a permanent full-time position and then the physician must file an I-140 form ($700) followed by an I-485 form ($1,140). Although there is no cost to file the PERM, there is a requirement that the physician’s job be advertised to ensure that no U.S. citizen physician is willing to take the job and a need for an attorney to complete the process – this can total an additional $4,000 – $5,000. There is no specified amount of time that the physician must remain employed by the sponsoring employer however the law’s intent is that it is a permanent job.
O-1 visa. These are less commonly used and are reserved for non-citizens possessing “extraordinary ability” in the sciences, arts, business, education, or athletics. This can be applied to physicians with unique skills, particularly in medical research. The advantages of O-1 visas is that there is no annual limit to the number that can be approved, there is no requirement for the physician to return to their home country (unlike the J-1 visa), there is no need to do a comparative wage attestation (unlike the H-1B visa), and there is no time limit to the O-1 visas which can be held indefinitely. The standards for the O-1 visa are quite high for physicians and generally require publication of research that demonstrates exceptional ability.
NAFTA TN visa. This visa is reserved for physicians from Mexico or Canada. The TN program was established by NAFTA as a temporary work authorization. Mexican citizens must obtain a TN visa. Canadian citizens do not require a TN visa but can elect to obtain one at a U.S. port of entry. A TN visa permits employment in research or teaching. Direct patient care is allowed only when it is incidental to teaching or research. Canadian or Mexican physicians who intend to mainly perform patient care should apply for an H-1B or O-1 visa instead.
The J-1 waiver
Many international medical graduates on a J-1 visa during their residency and fellowship will return to their home country for the required 2-year period after completion of training. However, some elect to stay in the United States without returning to their own country by obtaining a “J-1 waiver“. This generally involves working for a government organization or working in an underserved area of the country. Physicians must also obtain a “no-objection” statement from their home country. The J-1 waiver then allows the physician to apply for an H-1B visa without having to return to their own country for 2 years. There are several pathways to get a J-1 waiver:
- Persecution waiver. If the physician believes that he/she will be subject to persecution based on race, religion, or political opinion if he/she returns to their home country, then the physician can apply for a persecution waiver. These are uncommon.
- Veterans Administration (VA) waiver. The VA will sponsor waivers for both primary care and specialist physicians. Because of this, the VA is generally the J-1 waiver of choice for specialists. There is a 3-year commitment.
- Health and Human Services Administration (HHS) waiver. The HHS will sponsor waivers for only primary care physicians (family medicine, internal medicine, pediatrics, psychiatry, and OB/GYN). Physicians cannot have performed a fellowship. There is a 3-year commitment and physicians must practice in a Health Professional Shortage Area (HPSA) with a score of 7 or higher. The HPSA areas are shown in the county map to the right (click on the image to enlarge). The authorized employers and their HPSA scores can be searched for by county on the HPSA Find website.
- Conrad 30 Waiver Program. Each state is allocated 30 Conrad waiver positions every year and each state has its own state-specific application requirements. Positions can be offered to both primary care physicians and specialists although in many states, primary care applicants are given preferential treatment. Applicants must work in a Health Professional Shortage Area, in a Medically Underserved Area, or serve a Medically Underserved Population. Medically Underserved Populations are those that face economic, cultural, or linguistic barriers to health care such as people experiencing homelessness, low-income, Medicaid-eligible, Native American, and migrant farmworkers. Medically Underserved Areas/Populations and their index of medical under service scores can be searched on the MUA Find website. Specific areas are designated by their GEOID number. Physicians must work full-time for at least 3 years.
- Appalachian Regional Commission (ARC) waiver. This is limited to specific counties in the Appalachian area (click on the map to enlarge). Although designed for primary care physicians, specialists are sometimes accepted. Full information can be obtained on the ARC website. The physician must work full-time in a Health Professional Shortage Area.
- Southeast Crescent Regional Commission (SCRC) waiver. This is limited to states in the southeastern United States. This waiver is designed for primary care but specialists are sometimes also accepted. Full information can be obtained on the SCRC website. Physicians must work in a Health Professional Shortage Area, in a Medically Underserved Area, or serve a Medically Underserved Population for a minimum of 3 years.
- Delta Regional Authority (DRA) waiver. This is limited to states in the Mississippi River basin. Both primary care and specialists are accepted. Full information can be obtained on the DRA website. The physician must work full-time at a site in a Health Professional Shortage Area, Mental Health Professional Shortage Area, Medically Underserved Area, or Medically Underserved Population.
There is a substantial cost to the employer to obtain a J-1 waiver. The ARC, SCRC, and DRA each require a $3,000 application fee. There is no fee for the Conrad 30 or HHS waiver application. However, all of these programs have a requirement that the employer advertise the position nationally and demonstrate that no American physician is available to fill the position. Advertising expenses and legal expenses typically run about $8,000 – $10,000.
Academic medicine and international medical graduates
Foreign medical graduates at academic medical centers are treated slightly different than those employed by other hospitals or other clinical employers. First, they may be eligible for an O-1 visa or a TN visa, both of which are generally only used by physicians at academic medical centers. Most academic medical centers have experience employing foreign medical graduates because of the large number of these physicians who are residents or fellows in training programs. In the most recent internal medicine and pediatrics fellowship match, 26.2% of physicians matching to an available fellowship position were foreign medical graduates. In last year’s residency match, 14.5% of physicians matching to a PGY-1 position were foreign medical graduates.
Board certification/eligibility is usually required by hospitals for employment in order to perform patient care. In addition, health insurance companies may require physicians to be board certified or board eligible in order to participate in their insurance plans. In order to be board eligible, a physician must have completed a U.S. residency and/or fellowship. However, for some specialties, an exception can be obtained by foreign physicians practicing at an academic medical center who completed their residency or fellowship in another country. For example, the American Board of Internal Medicine permits foreign physicians working at a U.S. academic medical center to be eligible to take the board examination if they have an academic rank of at least assistant professor and are employed full-time for at least 3 years supervising medical trainees in clinical settings. The American Board of Surgery had a similar pathway for foreign medical graduates at academic medical centers however they did not accept applications for this pathway in 2023.
A complex process
As state above, legal counsel is essential when employing a physician who is a foreign medical graduate and not a U.S. citizen. If required documents are not submitted on time, it could result in the physician being sent back to their own country or not being eligible for the next step in the process of obtaining U.S. citizenship. Because of the need for an attorney with expertise in immigration law, as well as the need for job advertisement and various application fees, it can be costly to hire a foreign medical graduate. However, it can be hard to attract U.S. physicians to practice in medically underserved parts of the country, leaving hospitals with no other option than hiring foreign medical graduates. An advantage of these physicians is that the employer sponsorship requirements for work visas makes them less likely to resign than U.S. physicians, thus reducing physician turnover. Because of this, the added cost of hiring a foreign medical graduate may actually be less than the recruitment costs of a revolving door of U.S. physicians.
Given the high demand for foreign medical graduates, sending your hospital’s in-house attorney to attend a course in immigration law could be the best investment you will make this year.
December 18, 2023