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Carl Shusterman's Immigration Update


  1. Good News for Physicians Who Want Green Cards

    On March 9, 2016, the USCIS designated Matter of H-V-P, I.D. 16270 (AAO) as a precedent decision. It provides that the physicians who are specialists who practice in a medically-underserved area for a minimum of 5 years are entitled to permanent residence in the US through a National Interest Waiver (NIW).

    Is this really news? No, but the Director of USCIS’s Texas Service Center had denied that the physician’s NIW, holding that only primary care physicians are entitled to such waivers, this despite the fact that the USCIS has approved thousands of such NIWs for specialists over the past decade.

    This requires a little recounting of history.

    The Law (1999)
    On November 12, 1999, section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999 (“Nursing Relief Act”), was enacted to encourage foreign-born physicians to practice in medically underserved areas of the US.

    The law allows “all alien physicians” who practice for at least 5 years in a medically-underserved area to qualify a green card.

    The Regulation (2000)
    On September 6, 2000, to implement the statute, the Immigration and Naturalization Service (“INS”) published a regulation which restricted the applicability of the law to primary care physicians. The regulation also contained a number of other restrictive provisions not found in the law.

    The Lawsuit (2002-2006)
    On December 9, 2002, one Grumpy Immigration Attorney (Yours Truly) filed a lawsuit in Federal District Court challenging the various restrictive clauses contained in the regulation which contradicted the generous terms of the law.

    On my birthday in 2004, the Federal Judge dismissed our lawsuit. Happy Birthday, Carl!

    We appealed this decision to the US Court of Appeals for the 9th Circuit, and on June 7, 2006, in Schneider v. Chertoff, the Appeals Court unanimously ruled in our favor.

    However, the Court declined to rule on one of most important restrictions, that prohibiting specialist from qualifying for NIWs. Among the many physicians across the US who volunteered to be plaintiffs in our lawsuit, only one was a specialist. We made sure that his attorney filed an I-140 NIW on his behalf. The USCIS sent him a Request for Evidence (RFE) asking why he, as a specialist, was applying for an NIW since the regulations specifically prohibited this. Rather than respond to the RFE, the attorney simply failed to take action, and the I-140 was denied because of his failure to submit a timely response.

    Hence, the Appeals Court declined to decide this important issue.

    The Memo (2007)
    Although I was thrilled to win the lawsuit, I was disappointed that the Court had not ruled on this important issue.

    A couple of weeks later, I spoke at the Annual Conference of the American Immigration Lawyers Association (AILA) in Nashville, Tennessee.

    It was there that I had a conversation with a top official of the USCIS. He was concerned that I was requesting attorney’s fees from the government for my 4 years of work in Schneider v. Chertoff under the Equal Access to Justice Act (EAJA). In turn, I expressed my concern about having to sue the government once again to resolve the issue of whether a specialist physician could qualify for an NIW.

    We agreed that if I would drop my request for EAJA fees, he would include a clause in the upcoming USCIS memo stating that physicians who were specialists could qualify for green cards through NIWs.

    On January 23, 2007, the USCIS issued a policy memo which declared that “though not mandated by the Schneider decision, USCIS is expanding the fields of medical specialty that may qualify physicians for NIWs by accepting petitions on behalf of physicians who provide specialty care.”

    NIWs for Physician Specialists
    Since 2007, our law firm has obtained green cards for thousands of physicians, many of them specialists, through the NIW process as well as through PERM, but apparently not all attorneys have been so fortunate. See below.

    Matter of H-V-P (2016)
    In Matter of H-V-P, the Director of the Texas Service Center denied the NIW petition on behalf of a Hematologist/Oncologist on the ground that he practiced in a HPSA/MUA, not in a Physician Shortage Area (PSA), and that only specialists who practiced in PSAs should be able to apply for NIWs.

    The USCIS’s Administrative Appeals Office (AAO) rejected this argument citing the 2007 memo.

    One month later, the USCIS designated Matter of H-V-P as a precedent decision, meaning that USCIS officers cannot deny NIWs to physicians simply because they are specialists.

    Although this battle took almost 2 decades to resolve, I am very pleased to have fought the good fight, and forced the agency to follow the law.

    Updated 05-09-2016 at 03:06 PM by CShusterman

  2. Bill Would Help Supply Doctors To Rural and Inner City America
    On December 13, Senators Kent Conrad (D-ND) and Jerry Moran (R-KS) introduced the S.1979, the "Conrad State 30 Improvement Act".

    This bipartisan bill would make it easier for physicians educated in other countries to obtain temporary visas and permanent residence in the U.S. if they obtain offers of employment in medically-underserved areas of this country.

    Senator Conrad, who has announced that he will retire from the Senate in 2012, sponsored a law that was enacted back in 1994 which, for the first time, permitted states to sponsor up to 20 physicians annually for J waivers if these doctors found employment in such areas. The number of waivers available to each state was increased to 30 in 2002.

    For the past 17 years, the Conrad program has permitted states to sponsor over 9,000 foreign-born physicians to work in underserved areas. However, this program is not a permanent part of the law. It must be renewed every 2 or 3 years. Also, since the early 1990s, more and more physicians have obtained H-1B status, rather than J status, in order to pursue their medical residencies and fellowships in the U.S. These physicians lack a legal incentive to work in underserved areas.

    Among other things, S.1979 would do the following:

    • Make the Conrad program a permanent part of the law;
    • Allow physicians who work in underserved areas to immigrate under the EB-1 category rather than the EB-2 category;
    • Allow physicians who pursue their medical residencies in H-1B status and agree to work in underserved areas to restart the maximum 6-year duration of their H-1B status;
    • Increase the number of physicians that states can sponsor annually to 35 under certain circumstances; and
    • Make it easier for physicians in H-1B status who are work in underserved areas to change employers.

    The passage of this legislation would be a boon for rural and inner city America since over 20% of our country suffers from a shortage of physicians. This shortage is slated to rise to over 200,000 by 2020.

    Since the EB-1 category is "current" for all countries, the bill would aid Indian and Chinese physicians who are presently disadvantaged by backlogs in the EB-2 category.

    Also, the bill would, for the first time, aid physicians who complete their medical residencies and fellowships in H-1B status. This is important because the number of J-1 medical residents and fellows who are eligible to participate in the Conrad State 30 program has been steadily decreasing, much to the disadvantage of rural and inner city America. Typically, because of the 6-year maximum duration of H-1B status (with limited exceptions under AC-21), these physicians must scrabble to attempt to secure permanent residence in the U.S. before their H-1B status can no longer be extended. S.1979 would solve this problem for those physicians who work in underserved areas.

    As Senator Moran stated in his press release, "S. 1979 provides additional incentives for more doctors to participate in the program. Also, the bill provides a method for states to increase the number of waivers available to work in underserved communities."

    We will follow the progress of S.1979 as it moves through the legislative process.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 05:41 PM by CShusterman

  3. Universal Healthcare without Physicians?
    As we prepare to extend healthcare insurance to another 40 million people in the U.S., do we have enough physicians to care for them?

    According to the U.S. Department of Health and Human Services, over 25% of our population lives in medically-underserved areas where there is less than one primary-care physician for every 3,500 patients.

    Even under our present healthcare system, the Association of American Medical Colleges projects a deficit of 159,000 physicians by 2025. At least 15 medical specialty societies have released studies projecting shortages in their fields.
    The American Academy of Family Physicians predicts a shortage of 40,000 general practice physicians within the coming decade as U.S. medical school graduates favor higher-paying specialties. Passage of universal healthcare coverage would increase the need for physicians by 35,000.

    Unfortunately, in the not-so-distant past, the prevailing wisdom was that we were training too many physicians in the U.S. In 1997, a law was enacted which capped the number of medical residents and fellows in the 24,000 per year. Despite the realization that the physician shortage is severe and growing, this cap has increased less than the growth of our country's population during the past decade.

    The Obama administration has earmarked $200 million in federal stimulus money to boost the ranks of the National Health Services Corps by 3,300 physicians and other clinicians.
    However, this amount pales when compared against the need for tens of thousands of additional physicians.

    Despite the immense shortage of physicians, it is generally agreed that the physician shortage in the U.S. would be much worse without the presence of many thousands of International Medical Graduates (IMGs), physicians who graduated from medical schools abroad. IMGs currently comprise over 20% of all practicing physicians in the U.S.

    Unfortunately, we are less than welcoming to IMGs.
    Last year, over 3,000 IMGs who passed the required examinations and applied for U.S. residency programs were turned away.A large number of IMGs who enter U.S. residency training programs do so using exchange visitor (J-1) visas.Since J-1 visa applicants must demonstrate that they have no intention of remaining in the U.S. permanently, many IMGs are denied J-1 visas.Those who succeed in obtaining such visas are subject to the two-year home residency requirement. After completing their training in the U.S., they are required to return to their home countries for at least two years. Nevertheless, approximately 1,000 IMGs per year are able to obtain "waivers" of this requirement by being sponsored by an "interested government agency" in the U.S. and working a minimum of three years in a medically-underserved area, five years if they wish to immigrate by means of a National Interest Waiver.

    The bottom line is that, given the current budget deficit, Congress is unlikely to appropriate the billions of dollars required to educate and train a sufficient number of physicians in the U.S. Passage of universal healthcare will make the physician shortage even more severe.
    Therefore, we need to extend the welcome mat to IMGs wishing to serve U.S.patients.Reforming our outdated immigration laws would be a good start.

    For learn more about IMGs and our immigration laws, see

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    Updated 12-02-2013 at 04:48 PM by CShusterman

  4. H-1Bs: A Rare Opportunity for Students/Physicians to Apply The H-1B system is clearly out-of-sync with the real world.

    Persons who qualify for "cap-subject" H-1Bs are allowed to apply starting April 1st each year, but can not start working until October 1st, six months later.

    Since the number of applications usually far exceeds the number of available visas, this means that by the second week of April, it is too late to apply.

    What about all of the foreign-born students who graduate from U.S. universities in June each year?

    Since U.S. employers can not apply for H-1B status for them until after they obtain their degrees, by June, it is already too late to do so. One prominent newspaper calls this the "Happy Graduation, Now Go Home!" policy. The U.S. educates and then loses a lot of talent each year.

    However, this year is different. Because of the economic recession, there is hope for these students and their employers.

    The students can use their one-year Optional Practical Training work permits to start their jobs following graduation. See our "Student" page at

    Then, as soon as possible, their employers should seek to change their status to H-1B as of October 1, 2009. This is possible this year because there are almost 20,000 H-1Bs visas remaining.

    The same scenario is true for foreign-born medical residents and fellows who received their training in the U.S. using "cap-exempt" H-1B visas.

    These trainees complete their residencies and fellowships on June 30, at which time there are usually no "cap-subject" H-1B visas available. This year is different.

    Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for these trainees as soon as possible.

    Additional information is available on our "Immigration for Physicians" page at

    to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 04:53 PM by CShusterman

  5. Physicians To Benefit From H-1B Slowdown
    Do you have the mistaken assumption that H-1B visas are strictly the province of computer professionals? In reality, almost half of H-1B visas are utilized by health care and education professionals.

    This year's minimal H-1B usage is a boon to physicians finishing their medical residencies and fellowships. Why? Because, unlike last year when the H-1B cap was reached in the first week of the program, this year only 42,000 H-1B petitions were submitted toward the 65,000 cap. What's more, employers submitted a mere 1,000 petitions in the second week and another 1,000 during the third week. At this rate, the 65,000 cap won't be reached until sometime in September.

    So, how does this help foreign-born physicians?

    A little historical perspective is helpful. Prior to 1991, the only temporary visa category available to physicians who wanted to pursue medical residencies and fellowships in the U.S. was the J-1 exchange visitor visa. That year, Congress passed the Miscellaneous and Technical Immigration and Naturalization Amendments which, for the first time, permitted physicians who had successfully completed all three parts of the United States Medical Licensing Examination (USMLE) to obtain H-1B visas to pursue their residencies and fellowships.

    In general, most physicians prefer to do their training on H-1B rather than J-1 visas since the latter category comes at a steep price. J residents and fellows are compelled to return to their home countries for a minimum of two years before they can return to the U.S. on H-1B visas or as permanent residents. Alternately, they can obtain a "waiver" of this requirement, usually by being sponsored by a government agency and practicing for three years in a medically-underserved area.

    H-1B residents and fellows have no such requirement. However, most residents and fellows complete their training for H-1B "cap-exempt" employers, usually universities or hospitals which are affiliated with universities. This subjects them to another requirement.

    Although these physicians are not subject to the home residency requirement, they are restricted in the type of employers that they can work for after they complete their training. This is because their training usually ends on June 30th. Since "cap-subject" H-1Bs were not available beyond the first week of April for the past couple of years, these physicians have been restricted working at "cap-exempt" jobs. That is, they must practice medicine at a university, at an institution which is related or affiliated with a university, at a nonprofit research institute or at a government research institute. Such jobs are hard to come by.

    However, this year is different. Since it is all but certain that the H-1B cap will not be reached by June 30, H-1B medical residents and fellows will be able to transition from "cap-exempt" training programs to "cap-subject" jobs which begin on October 1st.

    A word to the wise. Physicians who accept jobs in affluent areas can qualify for H-1B status, but it is doubtful that they will qualify for permanent residency through employer sponsorship. Therefore, savvy physicians will look for jobs in areas where the number of physicians are few and where American physicians are reluctant to practice, mainly in inner city and remote rural areas. This way, they will be able to qualify for permanent residence either through PERM or National Interest Waivers.

    For additional information about temporary visas and permanent residence for physicians, job opportunities and "how to" immigration videos, see our "Physicians" web page at

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 04:54 PM by CShusterman

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