Foreign Physicians: No J-1 Waiver and the H-1B Cap has Been Met? What You Can Do Before The Clock Runs Out!

Tuesday, July 22, 2014 - 11:00am
Jan Pederson, Shareholder

J-1 Physicians, there is an physician immigration option, after a J-1 visa, even when your J-1 “dream” waiver job, or a hardship or persecution waiver may be temporarily is out of reach. These options do not eliminate the two year home residence requirement, however, they can temporarily suspend it. Eventually, a waiver must be obtained to be eligible for U.S. legal permanent residence, but the options below, could buy qualified physicians some extra time. Some of these options also apply to H-1B physicians who cannot locate a cap-exempt job.

The alternatives, which permit the physician to work in most instances, include:

  1. O-1 visa. The O-1 is a temporary nonimmigrant visa for individuals of extraordinary ability. This visa requires employer sponsorship and can be initially granted for three years, extendable in one year increments, with additional three year extensions possible if there is a change in employer or job duties. No particular wage is required and either the employer or physician can pay the legal fees and filing fees. This category requires a demonstration that the physician has accomplishments above the normal to be expected of a person in the profession.
  2. Canadian Citizens. Canadian citizens are U.S. visa exempt which means that they can be awarded H-1B status without a waiver (the visa issuance requires the waiver). As H-1B holders, they can work in this status under the terms and conditions of an H-1B status holder.
  3. Physician National Interest Immigrant Visa Petition I-140 “PNIV” (self-petition) and Green Card application. Physicians with five years’ of past, present or future employment contracts in medically underserved areas may be eligible for this benefit. The availability depends on the policy of the state department of health where the employment is located and whether they will issue the required support letter. Certain physicians (at this time, those born in India) cannot file the green card application concurrently with the I-140. Also, certain (Indian) physicians who completed training in H-1B status may be able to waive the six year limit in H-1B status by filing a PNIW petition. At present, physicians from all other countries (other) can obtain employment permission.
  4. National Interest Immigrant Visa Petition – “NYSDOT I-140” (self-petition) - and a Green Card application. Physicians who can demonstrate that their work (generally research oriented work) is in the national interest and has had a national impact are eligible for this benefit. As with the Physicians National Interest Immigration Visa Petition, at present, physicians from India cannot file the green card application concurrently with the I-140, may be able to waive the six year limit in H-1B status by filing a NYSDOT I-140 petition.
  5. EB-1 Extraordinary Ability Petition (self-petition) and a Green Card Application. Physicians who can demonstrate they are of extraordinary ability in their field are eligible to apply for this pathway. The relevant for the immigrant extraordinary ability petition is similar to the O-1 non-immigrant visa, but the adjudicatory process is often more rigorous in the immigrant visa context. This is green card application may be concurrently filed with the immigrant visa petition by all nationalities, at this time.
  6. Political Asylum. Political asylum allows an individual to request protection from the U.S. government as a result of a well-founded fear of persecution or future persecution if they were required to return to their home country. Their fear must be based on one of five specifically enumerated grounds including political opinion, religion, race, nationality or membership in a particular social group. A grant of political asylum can ultimately lead to an open market work permit and legal permanent residency.
  7. Temporary Protected Status. This temporary status applies to citizens of specified countries, which have been designated by the Secretary of Homeland Security. A complete list and the requirements can be found at .
  8. Deferred Action. Deferred action is a discretionary status whereby, Immigration and Customs Enforcement allows an individual to remain in the U.S. rather than being removed. If deferred action is granted, the physician is entitled to work permission. A grant of deferred action in and of itself does not allow for work authorization and will not ultimately lead to legal permanent residence.