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Question of the Month | |
Q. I am a physician born in India but my wife was born in Sri Lanka. I have an approved labor certification and she is my dependent. Can I file my I-485 application now based upon her country of birth?
A. Yes, in most cases, a spouse's country of birth can be used to avoid the current visa retrogression for EB-2 physicians born in India. This is called "cross-chargeability." In effect, your wife's country of birth will be "charged" to you so you can move to the "All Chargeability Areas" other than India and China and get your green card faster!
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Greetings!
Continuing with our Critical Immigration Mistakes Physicians Must avoid, this issue includes Mistake #7 - Filing I-485 - Adjustment of Status - too early! Do take the time to read this information.
Also, as always, in this issue we include important news and information to keep you up to date on J1, H1B, green card options and other immigration matters so you can stay on top of your immigration process.
Sincerely,
Angela M. Lopez
Badmus Law Firm |
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12 Critical Immigration Mistakes Physicians Must Avoid - Part 7
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With over 15 years of helping physicians practice in the United States, Badmus Law Firm has observed numerous immigration missteps that could have been avoided with the right information and knowledge. This year, each issue of our newsletter will discuss a critical immigration mistake and how to avoid it.
MISTAKE # 7 - Don't file the I-485 - Adjustment of Status application too early if you are a J-1 waiver physician. Physicians who received a J-1 waiver through Conrad State 30 programs must complete the entire three years of required medical service before they can apply for adjustment of status (Form I-485) or consular processing. This applies even to physicians married to U.S. citizens. The only exception to this rule is for physicians that apply for permanent residence through a National Interest Waiver (NIW) application. Physicians applying for NIW may file the I-485 application concurrently with the NIW (I-140) application, even though the three years of medical service for the J-1 waiver has not been completed.
For further information, call or email us at 469-916-7900, ppowell@badmuslaw.com. |
EB-1 - Fast-Track Green Cards for
Physicians at the Head of the Class
| Accomplished physicians who can prove they are at the "head of the class" may be eligible for a fast-track green card as a "person of extraordinary ability." Open to all occupations, this employment based category (EB-1) is primarily attractive because physicians can "self-sponsor" and avoid the lengthy labor certification process. In other words, the physician does not need an employer sponsor. The physician need only show that he intends to continue work in the field of his extraordinary ability. Evidence of this intent can include an employment contract, an offer of employment, or simply a statement to engage in self-employment.
For physicians born in India or China, the EB-1 is particularly sought-after because there is no visa backlog (usually) in this category. This usually means the physician can get his or her green card in a year or two as compared to five to six years (or more) in the EB-2 category.
 To qualify for the EB-1 green card, a physician must prove that he or she is "one of the few who has risen to the top of his field," either nationally or internationally. Proof of either (i) a major, internationally recognized award or (ii) at least three of the following distinctions is required:
· The physician has received nationally or internationally recognized prizes or awards for excellence in his area of expertise;
· The physician belongs to professional associations which require outstanding achievements of their members, as judged by recognized national or international experts;
· The physician has been the subject of articles in major media or trade publications relating to his work;
· The physician has participated on a panel or as a judge of the work of others in his area of practice;
· The physician has made original scientific or scholarly contributions of major significance;
·The physician has written scholarly articles that have been published in professional journals or other major media;
· The physician has worked in a critical capacity for an organization with a distinguished reputation in the field of medicine; or
· The physician has commanded a high salary or other compensation.
Although this laundry list looks fairly simple, the EB-1 application process is quite complex, requiring extensive and persuasive documentation to support the qualifying criteria. Even if the physician offers proof for three or more of the criteria, the government has the discretion to deny (rightly or wrongly) the petition so a favorable review or decision is by no means a sure thing, even for physicians with a long, distinguished career.
Also, the government has recently proposed a new guidance that will change the way it evaluates the evidence submitted with an EB-1 application. It is possible that these changes will cause even more restrictive review of the application.
Because of these proposed changes and current availability of the EB-1 green cards, now is the time for physicians to consult with a qualified immigration attorney for a thorough case evaluation. Badmus Law Firm has helped clients win EB-1 green cards quickly for over 15 years. For a complimentary evaluation to determine if you qualify for our fast-track green card program, you are invited to email your detailed curriculum vita to fast-track@badmuslaw.com.
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J-1 Waiver Season Starts Now!
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Starting October 1, 2010, most Conrad State 30 programs will accept J-1 visa waiver applications and will continue to do so until all 30 available waiver slots are full. Some states fill very quickly, such as Texas, while others may never use all of their slots. Those third-year residents who start the job search now and waiver process now will have more options.
Also, it is important to remember that the Conrad State 30 Program is only one of the programs available to obtain a J-1 visa waiver. Other programs include the Appalachian Regional Commission (ARC), the Delta Regional Authority, the Department of Health and Human Services (DHHS) , and the Department of Veterans Affairs (VA) Waiver program. For more information regarding these programs and the Conrad State 30 program, click here.
If securing a J-1 waiver quickly is important to you, contact us to schedule a complimentary telephone consultation with one of our attorneys who will help you execute a winning strategy. Call 469-916-7900 or email ppowell@badmuslaw.com. |
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H-1B Cap Count Update - Visas Still Available! | The status of the H-1B numerical limitation of 65,000 new H-1B visas per fiscal year ("H-1B cap") is critical information for H-1B physicians finishing their residency or fellowship training, J-1 physicians with hardship waivers of the two-year foreign residency requirement, and physicians outside the U.S. who are first-time or returning applicants for H-1B visas. J-1 physicians with government-sponsored waivers generally exempt from the H-1B cap and certain employers or employment are exempt from the H-1B cap as well.
As of September 10, 2010, for Fiscal Year 2011 which begins October 1, 2010, 37,400 H-1B cap-subject petitions have been filed, leaving approximately 27600 of 65000 H-1B visas still available. Employers hiring IMG physicians can apply six months in advance of the anticipated employment start date. Plan now to secure your H-1B visa while these visas are still available.
For more information about H-1B visas or other work visas, you are invited to contact Badmus Law Firm at 469-916-7900 or immigration@badmuslaw.com.
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Green Card Availability - Priority Date Update | |
 U.S. immigration law imposes a worldwide limit to the number of immigrant visas (green cards) given out each year. The worldwide total U.S. visas for family sponsored cases is about 226,000 a year and for employment based cases it is about 150,000. There is also a limit by a person's country of birth and by the way the person is sponsored. The annual limit of green card visas for any one country is 7% of the worldwide total.
If more people from a country apply than there are available visas, there will be a shortage of visas and the US State Department will set up a waiting list of people. The list is kept in Priority Date order with the earliest Priority Date at the top of the list. The Priority Date is usually the date the immigration petition was received by the United State Citizenship & Immigration Service (USCIS) or the date the application for labor certification was received by the U.S. Department of Labor.
Physicians are generally included in the employment-based second preference category (EB-2) because they hold advanced degrees. For most physicians, green cards are available and there is no "queue." However, physicians born in India or China must wait many years for a green card because of the high immigration rate of nationals from those countries. This is commonly called a "visa retrogression."
The Department of State (DOS) maintains the "waiting list" for family and employment-based green cards and publishes the status of the waiting list monthly through its visa bulletin. The visa bulletins for September and October 2010 continues to show currently availability for EB-2 physicians except those born in China or India. However, there continues to be significant forward movement for EB-2 India and China. Many of our Indian physicians who have been patiently waiting for five years or more are finally getting their green cards!
Here are some highlights of the October 2010 visa bulletin: EB1 - all current EB2 - all current, except China (22 MAY 06) and India (08 MAY 06) EB3 - all 08 Jan 2005 except China (08 NOV 2003), India (15 JAN 2002), and Mexico is 22 APR 2001)
For more information about priority dates, visa retrogression and green card availability, click here to download a Retrogression Q&A.
Are you a physician or researcher born in India or China? You are invited to contact Badmus Law Firm to evaluate whether you can fast track your green card process despite the EB-2 visa retrogression. Call or email 469-916-7900 or ppowell@badmuslaw.com.
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New Features on the CIS Website |
The U. S. Citizenship and Immigration Services (CIS) launched this month new web features designed to expand users' access to their case information. As part of CIS' commitment to improve customer service, these enhancements include a new online inquiry tool and tailored case status information, as well as, new features for Spanish-speaking customers available at USCIS.gov/espanol.
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JOB OPPORTUNITIES FOR PHYSICIANS |
Advance Your Medical Career with Part-Time H-1B Jobs for Locum Physicians - visit http://2ndh1md.com/, U.S. Physician Resources International.
For other job opportunities from employers who have expressed a willingness to sponsor visas for well-qualified physicians, click the link below:
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Thank You! | |
Thank you for recommending your friends and colleagues to us! To help your friends or colleagues learn the true facts about immigration, please forward this newsletter and invite them to contact us.
The information in this newsletter has been provided as an educational service. If you have specific questions or issues related to immigration, you are invited to call us at 469-916-7900 or email me at alopez@badmuslaw.com.
Until next time,
Angela M. Lopez
Attorney
Badmus Law Firm
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NOTE: Immigration law changes frequently. The resources and information provided in this newsletter are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these articles without seeking the advice of an attorney. To consult with Badmus Law Firm regarding your case, click here.
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