The search for post-training employment is often fraught with anxiety. For an international medical graduate, or IMG, there are extra levels of complexity to consider and negotiate when engaged in the job hunt and interview process.
Though many prospective employers are comfortable with the visa issues for an IMG, others are not. IMGs need to be advocates for themselves, but also recognize that there may be more limited professional opportunities for IMGs than for non-IMG colleagues.
An IMG and a prospective employer must each understand their respective rights and responsibilities and how they can—and should—effectively work together to ensure an IMG can start employment in the most timely way.
J-1 visa
There are two common temporary visas for IMGs: the J-1 and the H-1B. In general, the J-1 is specifically for training and the H-1B is for any form of professional-level employment (including as a resident).
Physicians already in J-1 status at the commencement of their residency will remain in J-1 status if they wish to participate in any fellowship training. The J-1 has an important benefit in that its duration is directly tied to the length of the training—thus a resident seeking to become a sub-specialist through a program of four or more years of post-residency training will be able to do so while on a J-1.
J-1 IMGs also have limitations. A J-1 cannot moonlight as a means to supplement income. The other principal limit is potentially more restrictive. Under the “two-year rule,” a physician who receives graduate medical education or training in J-1 status must reside in his or her home country for two years before obtaining H-1B status or a “green card,” unless the physician can find employment in the United States that qualifies for a waiver of that requirement.
Another J-1 limitation is that relatively few fellowship programs will accept IMGs as fellows until the individual has permanent residence (i.e., a green card).
J-1 residents who wish to pursue fellowship training in a specialty (non primary care) should plan for a more difficult fellowship search as well as a more difficult job search after the fellowship. Employment that qualifies for a federal waiver is mostly available for primary care physicians, as the waiver program was designed to address primary care shortages.
Specialist waivers are available, however, both from some state departments of health and from the Veterans Administration hospitals. To obtain a waiver, the physician must serve an area of health care professional shortage, such as rural or inner-city hospitals and practices, or in the VA system. The physician will then typically be required to spend at least three years working in that position in H-1B status prior to being eligible to complete the green card process.
H-1B process
As compared to J-1 IMGs, the options for individuals on H-1B status may be fewer because the number of training programs willing to sponsor H-1B status are fewer due to the higher expense of the H-1B process. In addition, the H-1B visa is limited to six years (unless the green card process is begun). The general rule allows a aximum of six years that can be spent in H-1B status with any one or combination of employers.
In most cases, the physician will have used three or four of those years in completing the training program(s). In some cases, such as if the IMG had a H-1B position prior to commencing the program or is in a five- or six-year specialty, there may be less time remaining in H-1B status upon completion of the program.
There are a few exceptions to the general rule allowing a six-year maximum stay in H status. A physician can extend the H-1B in one-year increments beyond the sixth year where the labor certification, the first step of the green card process, is filed at least one year before the sixth year in H-1B status comes to an end. Because of the length of time it can take to prepare and file a labor certification, it is critical that the physician’s employer commence the labor certification application process no later than the middle of the fifth year in H-1B status.
In some cases, H-1B extensions will not be possible at the completion of the six years. Then, other options must be explored if the individual wishes to remain in the United States and in a training program. One option is the possibility of obtaining employment authorization based upon the filing of an I 485 application. The second possibility is an O-1 visa, which is an employer-sponsored visa, available for doctors of “extraordinary ability.”
The green card process
Assuming there are no permanent residence options based upon marriage to a U.S. citizen, asylum or investment, there are four options for obtaining permanent residence based on practice as a physician in the United States: EB-1 Extraordinary Ability; EB-2 National Interest Waiver/Research; EB-2 National Interest Waiver/Clinical Shortage; and EB-2 Labor Certification Application.
A physician with a very strong clinical and/or research background (usually research) may be able to document a reputation as “one of a few at the top of his peers” (EB-1) and/or as “substantially better than others in the field, whose work has an impact that is national in scope” (EB-2/NIW/ Research).
These routes are advantageous for several reasons, including that the applications can be self-sponsored. Except for IMGs born in India or China, who are subject to a quota backlog, a concurrent application for “adjustment of status” from H-1B to permanent residence, along with concurrent applications for employment authorization and travel permission, can be filed. For qualified IMGs, this route to obtaining permanent resident status is likely the quickest —a petition and adjustment of status application can normally be prepared and filed in six months or less, and will often be adjudicated by USCIS in as little as six to 12 months, resulting in permanent residence in as little as a year to 18 months after starting the process.
Another option available is the national interest waiver (EB-2) based on providing medical care in an underserved area. This option is only available to physicians who commit to practice primary care in a federally designated Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA). As evidence of this commitment, the physician must sign a five-year contract and obtain a favorable recommendation from the state department of health in the state where the practice is located.
The advantage of this strategy is that the doctor can file a concurrent application for permanent residence, employment authorization, and travel document if there is no quota backlog, meaning that the doctor does not have to find an employer in order to maintain immigration status in the U.S. The disadvantage is that the application will not be adjudicated until the completion of the five years, and the doctor is required to continue to practice in a shortage area and in a primary care field for the entire period, effectively limiting the physician’s flexibility during those five years.
Perhaps the most prevalent strategy used for physicians is an employer-sponsored labor certification application. This requires a cooperative employer willing to engage in specified recruitment efforts in an attempt to satisfy the U.S. Department of Labor that it has been unable to find a qualified, interested and available U.S. worker for the position being offered to the physician. The position does not have to be in a HPSA or a MUA; obviously, though, the more desirable the location and position, the greater the chance of finding a qualified U.S. physician interested in the practice.
The labor certification application procedure is most appropriate for physicians being employed in shortage areas and physicians with a specialty or sub-specialty that may be in short supply. Therefore, from the physician’s perspective, the goal is to find a position with an employer who has had a difficult time recruiting U.S. physicians, either because of location or other characteristics of the practice.
One other potential option for physicians considering subspecialty training is to wait a year or two after residency to enter the training program. Many physicians are graduating from residency and taking positions as hospitalists, locum tenens, or other primary care positions for a period of two to three years for an employer willing to sponsor the physician for permanent residence. At the conclusion of that period, the physician holds permanent residence and is, therefore, eligible for broader range of training opportunities than would have been available as a J-1 or H-1B nonimmigrant.
Negotiating the employment contract
In addition to having qualified immigration counsel to assist with the J-1, H-1B and/or green card processes, an IMG physician should seek the assistance of health care counsel that is familiar with physician employment contracts.
An IMG physician does not have any fewer rights—or responsibilities—than a non-IMG physician when it comes to clinical care or the impact of the terms of an employment agreement. Understanding the length of the contract, the compensation (including any bonus provisions), the benefits, the termination provisions and the general work responsibilities are critically important for every physician.
Some immigration processes may impact the contractual provisions a physician can sign, but these are relatively few. The J waiver for shortage area physicians, for example, prevents the employer from including a noncompete clause in the physician’s contract. Employers of H-1B physicians, as another example, can require a “payback” agreement requiring the physician to reimburse certain (but not all) visa expenses if the physician terminates before the end of the contract, but cannot have a penalty for early termination. Aside from these narrow exceptions, however, IMG physicians have the same contractual rights as any other physician.
From a compensation standpoint, an employer is required to pay the higher of the “prevailing wage” for the occupation—the average rate of wages for similarly employed physicians in the area where the physician will work—or the “actual wage” it pays to similarly qualified physicians already in its workforce. An employer cannot pay sub-standard wages because a physician has IMG status.
Depending upon an IMG’s visa status, a termination provision with or without cause—by the employer or the IMG— can have devastating consequences. Generally speaking, termination will cause the physician’s lawful status to end upon termination, and employers will generally cease any progress toward the green card if the employee terminates. IMGs should be careful to understand, therefore, what the grounds for termination of employment will be.
An IMG physician should not take any provision in a proposed employment contract for granted. Though an IMG may have potentially fewer options for employment than a non-IMG physician, it is critically important to understand the ramifications of each and every provision in an employment contract and use your best efforts to modify those provisions that could have a short-term or long-term impact upon you and your family.
One item that often becomes a negotiating point is who pays the costs of immigration counsel. A prospective employer is often willing to pay these
costs, or the costs up to a certain limit, since it is in the employer’s interest to ensure the immigration work is done properly and efficiently. The employment contract should address whether the employer will directly pay these costs or reimburse the IMG physician.
It is typically not necessary for the employer and physician to each have separate immigration counsel. This is particularly true when the employer is sponsoring the IMG’s application process. It is important for the IMG, however, to make sure that he or she has a comfort level with the work being provided by the employer’s immigration counsel. This is very different from employment counsel, in which it is expected that the employer and potential employee have different counsel advocating for their respective interests.
Often, the employment attorney (for the employer and/or the physician) works collaboratively with the immigration counsel to ensure there are no inconsistencies between the employment contract and the immigration status. In a difficult economy, finding and securing the ideal job can be challenging for any physician of any specialty. For an IMG, the hurdles can be a bit more difficult, but they are certainly not insurmountable. Lead time in planning, and considering multiple opportunities in multiple venues, is imperative. Having skilled immigration counsel and employment counsel can help navigate an IMG toward a long and successful career.
March 1, 2017
Tammy Hager, PracticeLink.com
