For an IMG to legally work in the United States he or she must either be a United States citizen, a lawful permanent resident (green card holder), a non-immigrant (temporary visa holder) or have some other immigration status authorizing employment.  While a citizen and green card holder have broad employment authorizations, there are several non-immigrant categories, each with different rights and restrictions.  This can be a confusing process.  To employ an IMG candidate, employers should understand some basics and find an experienced attorney to guide them.

The non-immigrant categories are granted for a specific purpose and a limited time period.  The most commonly encountered with IMGs are the J-1, H-1B and O-1.  Others that may be utilized include TN for Canadian and Mexican teaching and/or research physicians and the E-2 where the IMG makes a substantial investment in a new practice or partnership.

J-1
IMGs will typically participate in United States residency and fellowship training using either the J-1 or H-1B categories.  With J-1 visa status, the IMG may participate in training, and at its conclusion must obtain another visa status, such as H-1B or O-1, to continue a medical career in the United States.  On the other hand, the H-1B can be used by the IMG to be employed in a training program or a clinical setting, if other requirements are met.

When an IMG participates in graduate medical training with J-1 visa status, he or she becomes subject to the two year foreign residence requirement.  Those subject to this requirement must return to their home countries at the conclusion of their training programs and must reside there for two years.  Until this requirement is satisfied, the IMG is ineligible for an H-1 or L-1 visa status or for a green card.   Fortunately, there are options to obtain a waiver of this two year residence requirement, such as through a request by a State Department of Health or an Interested Government Agency (IGA), hardship to a spouse or child who is a United States citizen or green card holder or persecution.

The Immigration and Nationality Act imposes several requirements for J-1 waivers processed through a State Department of Health or IGA request, including: 

• If the IMG is contractually obligated to return to a foreign country, he or she must submit a letter of no objection from the government of that country.
• The IMG must have an offer of full-time employment that is found to be in the public interest.
• The IMG must agree to begin the employment within ninety days of receiving the waiver, and the IMG must agree to continue to work for a total of not less than three years.
• The IMG must agree to practice medicine for this three year period only in areas designated as Health Professional Shortage Areas (HPSAs) or Medically Underserved Areas (MUAs).  A State Department of Health may request up to thirty waivers per year, and ten of these may be for IMGs to work at facilities that are not in designated areas if they serve patients who live in HPSAs or MUAs.  The Department of Veteran Affairs is exempt from this requirement.  

In addition to these, the various State Departments of Health and IGAs may impose their own requirements, which will vary from one program to the next.  For example, the Louisiana Department of Health and Hospitals' J-1 waiver program requires the employer to conduct at least six months of recruiting before the IMG's contract is signed and the facility must accept all patients regardless of ability to pay, including Medicaid, Medicare and uninsured patients and offer a sliding fee schedule of discounts for patients whose income levels are at or below 200% of the federal poverty guidelines.  DHH's program includes several other requirements, too.

 

Because a State Department of Health is limited to just thirty waivers per fiscal year, waiver applications should normally be submitted to them as early as possible.  Another good reason to apply early is the long processing time for these cases.

 

If the waiver is approved through a State Department of Health or IGA request, the IMG must acquire H-1B visa status to engage in the employment and fulfill the terms and conditions of the waiver.  While the physician and employer should begin the green card process while the physician is fulfilling the three year service obligation, only after its completion can the IMG file the last step of the green card case.

 

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Jeremy S. Zollinger is an attorney who has practiced exclusively in the field of immigration and nationality law since 1995.  He represents individuals and employers, including multinational corporations, small businesses, non-profits, physicians, clinics, hospitals and others.  He may be reached at (504) 799-2244 (office), (504) 390-5828 (cell) and jzollinger@bellsouth.net.