Physicians & Nurses: Immigration Primer II - Q&A

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Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

Physicians & Nurses: Immigration Primer II

I'm calling Mr. Shusterman and turning on moderation.

Carl: Good evening, let's get to the questions.

Jennifer: Remember everyone that these answers are of a general nature and should not be construed as legal advice.

Question 1: Hi, I am currently on H-1B fulfilling my J-1 waiver. I got my I-140 approved through RIR. I've done more than 2 out of 3 years waiver by now. Can I file my I-485 now or do I have to wait till 3 years? I know people who have filed their I-485 before three year is over on waiver job RIR.

Carl: You must wait until the 3 years are over before applying for adjustment of status.

Question 2: I have worked in an underserved area for 4 years. My NIW was approved last year. How much more time do I have to serve to get the green card?

Carl: That depends on whether you used to be in J-1 status and received a waiver. If so, your five years start when you change status to H-1B and begin working in a designated
area. However, if you were never in J status, the INS regulations state that the 5 years do not begin to run until your NIW petition is approved.

The unequal treatment between these two categories is one of the things that our law firm will challenge when we sue the INS over their NIW regulations later this year.

Question 3: If somebody gets his GC through Labor Certification, how long after getting GC it is safe to leave the job to avoid any future problems?

Carl: The statute and regulations do not specify a certain time that you must work for the employer, but to be on the safe side, I would advise you to work not less than 60 days for the employer after you achieve permanent residence.

Question 4: What if RN fails to get VisaScreen at I-485 stage within 120 days? Then does the RN become out-of-status and has to file the I-485 all over again?

Carl: If the INS denies an application of adjustment of status submitted by an RN, because she lacks a VisaScreen certificate, she should immediately file a new application for adjustment of status, under section 245K of the law.

Question 5: Mr. Shusterman, I highly appreciate your work. I am ex-J1 and did 3 years with my present employer. Have EAD after applying I-485 upon approval of I-140 for NIW for physicians. Now I have another job offer and applied for a 2nd I-140 for another HPSA, do I have to wait for INS adjudication/approval or start new job on my EAD?

Carl: You can start your new job on your EAD.

Question 6: Hello Mr Shusterman, I need your advice on my situation. I am a physician doing my fellowship in Hematology/Oncology, completing my fifth year of H-1B (never been on J-1) this August 31st 2002. I have a job offer from the university, actively engaged in Cancer research, have many abstracts, three publications to be published, a national award and a modest grant money for research from the National Cancer Society. I am pursuing the NIW right now. I need your advise regarding: 1) Is my case good for an NIW and 2) Should I also pursue the EB-1 or 3) Do I have enough time on my H-1B to go through the whole process or do I have to think of another visa like O-1 and when?

Carl: The law states that "any physician" may receive an NIW. The INS regulations, however, limit NIWs to primary care physicians except in the case of a physician employed by the Veterans Administration. This is another section of the regulations that we will be challenging in our lawsuit. If you have a job offer with the VA, you can file an NIW and then work for the next 5 years on your EAD. However, if you do not have a job offer with the VA, you may want to apply for O status and wait to see the results of our lawsuit.

Question 7: Should a LPN follow the regular Labor Certification procedure?

Carl: Yes.

Question 8: My wife is in her third year residency in Internal Medicine on J-1. Before that she was in H-4 for 5 years. I have a green card and won't be eligible for Citizenship until September 2005. Is she eligible for a J-1 waiver as she was already on H-4 status for 5 years (considering 6 year total for H status)? If she is not eligible for a J-1 waiver, can she apply for a green card based on an employment opportunity (while she is the fulfilling the 2-year requirement) so that she can come back after 2 years? What other options are available?

Carl: She is eligible for a J-waiver. After changing her status to H-1B, she should immediately submit a NIW petition, obtain an EAD, and continue working. This way, she avoids the 6-year limit of H status.

Question 9: In Calif. RN can not get an SS# & does not have the CGFNS. The CA board will not accept employers EIN. What do you suggest?

Carl: I received a phone call on Friday from INS headquarters in Washington D.C. They indicated that they will be responding to a letter that I sent to them, requesting that the INS return to its old policy.  For the past 20+ years, the INS has regarded a letter from the state licensing authority stating that a nurse has passed an NCLEX examination and will be issued a state license upon the presentation of a social security number as the functional equivalent of a full and unrestricted license.

If the INS agrees to do so, the "chicken and egg" problem, caused by the lack of of a social security number will simply go away. I will post the INS's letter on my web site as soon as I receive it.

Question 10: I am a registered nurse from the Philippines and am now awaiting an immigrant visa interview at the US Embassy in Manila. What would the consequences be if I do not complete the minimum employment period with the sponsoring employer as stated in the contract? How would this affect renewal of my permanent residence card in the future?

Carl: The immigration laws require that you have no intention of leaving your employment by a certain date. However, if you work for the employer for a reasonable amount of time, say 60 days, there will be no negative consequences regarding your immigration status should you later decide to change employers. However, depending on the language of your contract, there may be other non-immigration legal consequences if you leave your employer before a stipulated time. For example, if the contract provides that your employer will forgive a loan covering your travel, and relocation expenses if you work for the employer for a minimum of one year, you may be subject to a lawsuit to collect the amount of the loan if you fail to do so.

Question 11: Hi Carl, I am in my fourth year of underserved job. My NIW was approved last year. Do you think that the INS will approve my 1-485? After I finish 5 years or will they count from the time NIW was approved.

Carl: As we said above, in answer to a similar question, if you were formerly in J-1 status, the 5 years start when you begin working in the underserved area in H-1B status. However, if you were never in J-1 status, the 5 years begin only when INS approves the NIW petition.

Question 12: Since the last chat, did you get any more physicians who are joining for class action law suit?

Carl: Yes, quite a number.

Question 13: The House of Representatives has passed a bill to increase the J-1 waivers per state from 20 to 30. How long will it be before this bill becomes a law? Will it become a law in time for the upcoming year's (Sep 2002 - Aug 2003) Conrad programs? Thank you.

Carl: Yes, I believe it will.

Question 14: Who reviews an O-1 application? Does it go to the NIH? Kindly give me general directions for a successful O-1 application - both through the regular route and the expedited route.

Carl: The O-1 petition does not go to the NIH. It goes to the INS. For information about the requirements for O-1 status, please see my web site at

http://shusterman.com/toc-temp.html

or schedule a consultation at

http://shusterman.com/intake.html .

Question 15: When is PERM going to be effective in lieu of labor certificate?

Carl: The PERM regulations were issued by the Labor Department in proposed form in May with a 60-day comment period. The regulations are extremely controversial and many comments were received by the labor department. I assisted both the American Immigration Lawyer's Association and the American Hospital Association in drafting their comments. I imagine that it will be quite a few months before we hear anything more about the PERM program.

Question 16: I started my J-1 visa waiver in 03/00, obtained NIW approval in 09/01.   When should I apply for change of status?

Carl: You may apply for adjustment of status immediately.

Question 17: Would a Pediatric Intensivist be considered a primary care giver under the California Conrad State 20 program?

Carl: Good question. Each state has their own guidelines. We received new guidelines from California in the last few days. My advice is to submit an application and see what California does with it.

Good luck!

Question 18: I am on H-1B(fifth year) and my wife on the first year of H-1B.If she applies for Labor Cert now, and the application is pending till next August 31, 2003. Can I indefinitely extend my H-1B based on her application?

Carl: No. AC-21 provides for seventh year H-1B extensions when the labor certification has been pending for over one year, AND an I-140 has been filed.

However, depending on your wife's circumstances, there may be creative ways to satisfy this requirement. For example, if your wife's application for labor certification has been pending for over a year, and she also files an NIW petition, she will have satisfied the requirement, and you may apply for a 7th year H-1B.

Question 19: Is the California Conrad State 20 program a "first come, first serve" application in October or do they pick the ones that they like?

Carl: It's a little of both. They pick the ones that they like, but after they have made their recommendations, the game is over for the rest of the year.

Question 20: I have applied I-485 based on an approved NIW. If I get another I-140 through EB-1, how do I file another I-485 when previous one is pending?

Carl: It is not necessary for you to file another I-485. However, since you are required to wait 5 years to adjust your status under the NIW petition, if you are in H-1B status, it may be easier to submit a new I-485 based on your recently approved EB-1 petition.

Question 21: Is there any new law coming out soon to relieve the nurse shortage situation?

Carl: Regrettably, no.

Question 22: What visa is good for nurses without CGFNS to come to the US?

Carl: Green card. See http://shusterman.com/rn2001.html

Question 23: Dear Mr Shusterman, Can you elaborate on this and if the INS still holds true to this regulation of theirs. i.e., for the J-1 physician who got the conversion to H-1 on a certain date and got the I-140 approval later, INS would count the 5 years from the J-1 physician started work in the underserved area or from the approval of I-140. Thanks.

Carl: In such a case, the INS regulations hold that the 5-year service requirement states from when the change of status to H-1B was granted and the physician started work in the underserved area.

Question 24: What is the procedure to expedite I-485 if I am qualified to do so?

Carl: Generally, I-485s are not expedited.  However, the I-485 will always be expedited if you have a child who is about to turn 21. When the I-485 is submitted you should state on your cover letter very prominently that this is an "age-out" case and specify the date when your child will turn 21.

Question 25: Should I take the course of Associate degree in Nursing program at local college? What are my chances of getting job after completion of my course and what are my chances of getting immigration on the basis of completion of this program?

Carl: As long as you are in legal status, an RN license is
your key to both a job and a greencard. If you cannot find a job, I'll
find one for you. See:

http://shusterman.com/rn-free.html

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