Jennifer Wipf: Welcome to
our chat on the new regulations for physicians with immigration attorney, Carl Shusterman,
who specializes in, among other things, immigration law matters for health care workers.
Everyone, I am calling Carl now. Please hold questions for a little while. I have many for
Carl to answer so far. Keep in mind that many of you have asked very similar questions. I
am turning moderation on and calling Mr. Shusterman now.
Jennifer Wipf: Moderation is
on. Only I can see the questions you ask and I will copy them for Mr. Shusterman. Mr.
Shusterman will be with us in a moment. He just arrived at his home office. I have logged
all questions so far.
I should ask for free medical advice while we wait ;-)
Jennifer Wipf: Everyone, Mr.
Shusterman is here now, and we'll get started.
Carl Shusterman: Good
evening. I'd like to thank Jennifer Wipf and Born Abroad for hosting this chat on such short
notice.
The position regulations were published on the Federal Register and I'm
glad we're able to answer your questionsso.. let's get to them!
Question #1: I am a former
J-1 currently working in HPSA under H-1B. My NIW was approved in July 1998. Can I file for
adjustment of status on basis of the new regulation? Does section 214(l) which states that
a former J-1 has to remain on H-1B for 3 years before applying for adjustment of status
apply?
Carl Shusterman: The new regulations make it clear that they do not supercede Section 214(l) for a
physician working in an underserved area to obtain a waiver, of the two-year home
residency requirement, he must work in H-1B status for a minimum of three years. However,
the new regulations allow that same physician, to file an application for Adjustment of
Status as soon as his National Interest Waiver is approved and his priority date is
current.
The bottom line is you can file your application for Adjustment of Status
immediately under the new regulations although 214(l) requires that you remain in H-1B
status until the end of the three-year period. To be fair, some attorneys think that
this is a gray area and will not file an application for Adjustment of Status until the
three years are over. I'm sure that some time in the future, the INS may want to issue
further guidance as to what their position is on this issue.
Question #2: Having applied for NIW in
April 2000, will my priority date be based on my application or will it depend on the date
when my petition is approved?
Carl Shusterman: Your
priority date is the day your application was received by the INS.
Question #3: I am an Indian born internist
working in an HPSA for the last 1 year. I filed my NIW I-140 Petition a few months back.
Should I also file for my labor certification to play it safe?
There is really no need to do so, since the INS regulations include internists and
other primary care physicians under the scope of the NIW law.
Question #4: NIW filed before August 98
denied. # years in underserved completed on H-1B. DO I need to reapply for NIW? How early
can I have EAD and spouse on H4 have EAD? Since only two and half years of H-1B left what
about priority date - Indian . Will I run short of time what options?
Carl Shusterman: The
new regulations provide for the processing of NIW petitions filed on different dates by
dividing them into six separate categories.
For NIWs that were denied before the enactment of the law on November 12, 1999, where
there is no appeal pending, there is no possibility for a motion to reconsider or reopen.
They physician must file a new NIW, if qualified, and obtain a new priority date.
The regulations provide that any NIW which was still pending either at an INS service
center, on appeal with INS' Administrative Appeals Office, or in litigation in Federal
Court, will receive more favorable treatment than an NIW which was denied before that date
and not appealed. In the former case, the physician should ask that the case be remanded
at the service center for a new decision and submit supplemental evidence as required by
the new regulations. These physicians will be allowed to keep their original priority
dates.
For details about all six categories see the complete text of the Physician NIW
regulations, see:
Question #5: I have just gotten a H-1B visa
and a waiver. With the new NIW guidelines, when is the best time to start the application
process for NIW?
Carl Shusterman: The answer to your question depends on a number of variables. For example, if you
were born in one of the two backlogged countries, India or mainland China, you must be
concerned about establishing the earliest possible priority date. If you haven't already
filed an NIW petition, I would do so immediately. Physicians born in other countries, also would be wise to submit
their NIW petitions early. However, the regulations depart from the law, and provide that
physicians must fulfill the five year requirements within 6 years or if the NIW petition
was filed prior to November 1, 1998, that they must fulfill the 3 year requirement within
4 years. The time period starts either when the NIW petition is approved, or if the
physician has no employment authorization when the NIW is approved, when the Employment
Authorization Document is issued by the INS.
The 3 or 5-year period where the physician works in an underserved area, need not be
consecutive, only "in the aggregate".
Suppose you anticipate some future event which will prevent you from continuing your
employment in an underserved area for one year or more (e.g. finishing a fellowship,
taking off time to assist a parent who is ill, or even a possible job loss), you would be
wise to delay the filing of the NIW in order to give yourself more time to meet the three
or five-year requirement.
Jennifer Wipf: I need
everyone to hold questions until I can take more. I can't type Carl's answers and copy
your questions at the same time. Please keep in mind that we have questions waiting, and
that many of your questions are similar. :)
Question #6: I have been approved for an NIW
before Nov.1998. My 3 yrs. will be up this Nov. Could I work for another employer once my
3 yrs. are up, or do I need to stay with my current employer? Also, could I file for my
adjustment of status before my 3 yrs. if I could switch to another employer, should I
continue on an H-1B, or could I wait for my employment
authorization document?
Carl Shusterman: Once you have satisfied the
three year requirement, you are no longer subject to the 2 year home residency
requirement. And as long as you are not depending upon the labor certification to obtain
permanent residence, you may change employers. However, you must continue in H-1B status
for a minimum of 3 years to maintain your J waiver.
Question #7: I am subspecialist. Can I still
obtain J-1 waiver from a VAMC according to new rules. My application has not reached to
the State Department yet. The new "interim" regulations limit NIWs for
physicians under the 1999 law to primary care physicians, including family or general
medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry.
The law itself applies to "any alien physician" and I believe that the
regulations are overly restrictive, and could be easily overturned in the federal courts.
Also, it is far from clear whether specialist working for the VA are excluded. You may
wish to submit an NIW. However, if the INS begins to deny NIWs filed by specialists
employed by the VA, think about having your employer submit a labor certification on your
behalf. The VA may be reluctant to do so, and ultimately this issue may be decided in the
Federal Courts.
For those who are interested in reading my analysis of the NIW regulations, which I
posted on the web on the same date that the regulations were issued (and which have been
posted on the site of several other immigration attorneys and mentioned in last week's
American Hospital Association News), see:
Jennifer Wipf: I cannot type
Carl's answers and answer individual questions at the same time, please be patient.
Question #8: I am PGY-4 IMG on an H-1B visa
and have applied for an NIW. What are my chances?
Carl Shusterman: H-1B residents are not ineligible to apply for NIWs, however, only time spent working
as a primary care physician in an underserved area counts toward the 5-year NIW
requirement. Time spent working as a J resident, does not count toward the 5-year
requirement.
Jennifer Wipf: I have 30 questions here, and they are in
the order received, not by name. I will take as many as possible, and we will stay a few
minutes extra.
Question #9: I am a former J-1 physician
born in India working in a HPSA for the last year as a primary care physician. I applied
for I-140 based on NIW which is pending with the INS. Should I also apply for my labor
certification to be on the safe side? Once I file my I-485 and get an advance parole, can
I travel overseas without the need for obtaining a visa at an American Embassy in order to
reenter US. Thank you very much for maintaining one of the best websites on Immigration.
Carl Shusterman: Thank you. Submitting an NIW and an Application for Alien Labor Certification are not
mutually exclusive. Many of our clients choose to do both. The NIW petition is the
preferred route since labor certification limits you to working for a particular employer.
However, under the new regulations, there are some physicians who may have filed NIWs and
now should also file applications for labor certification. Specifically, the strategy is
one that many specialists should adopt. Since you are a primary care physician, there is
no necessity for you to file an NIW and a labor certification, but you may if you wish.
Once you obtain Advance Parole, you will not need a visa to return to the US.
Question #10: If I change employers during
5-year period I understand I have to file a new NIW but does that mean a new letter of
support from state health department or Federal agency is required. Thanks.
Carl Shusterman: You are correct, if you change the location of your employment, you must file a new
NIW petition, and the petition must contain all of the required supporting evidence,
including a "public interest letter" from either a federal agency or a State
Department of health. The law clearly states the letter can come from "a department
of public health" in any state, but the regulations changed this to a State
Department of Public Health, thereby eliminating letters from municipal, county or
regional entities.
Also, if you are changing states and intend to use a letter from the State Department of
Public Health, a letter must come from the department of public health in the state in
which you are employed.
Jennifer Wipf: If you miss
any answers, there will be a transcript up within the week.
Question #11: My NIW was denied before Nov
99. I filed for motion to reopen in Feb 00. What are the chances that I will get approval
under the old law.
Carl Shusterman: Unless you appealed your
pre-November 1999 denial, the INS will deny your MTR. Your only choice at this point is to
file a new NIW petition.
Question #12: What type of attestation do
they want, from whom and how many times? Is my federally-qualified health center
considered a valid federal agency to provide such attestation?
Carl Shusterman: The attestation need only be filed once unless you change the location of your
job. It may come from any federal agency or the State Department of Public Health in
the state of your employment.
Question #13: How important is it to get a
letter from the state dept of health? Will a letter from city dept of health for the
same state fulfill the requirements?
Carl Shusterman: No.
Question #14: Hoping that INS will start
approving NIWs next month, but what will decide priority date ? The date of I140 petition
or date of approval?
Carl Shusterman: The date of the I-140 petition.
Question #15: What about surgery J-1
holders, can they also qualify for NIW under the new rule?
Carl Shusterman: No
Question #16: In order to qualify for the 3
year rule (NIW) if the J-1 waiver was granted before 1998 November or it is the filing
date of the NIW that determines the 3 Vs 5 year rule to serve in an underserved area.
Carl Shusterman: The filing date.
Question #17: In the new NIW regulation,
when does the 5 year requirement start for J1 waiver physicians on H-1B?
Carl Shusterman: Your first day of work as an H-1B physician.
Question #18: I have my NIW approved in
Janurary 1998; is pending. I filed for AOS in Dec 98. I would like to find out if the
current laws apply tp NIW petitions which have been approved prior to November 1998?
Carl Shusterman: The law provides that physicians working in medically underserved areas who filed NIW
petitions prior to November 1, 1998 should now have them approved. In order to adjust
status those physicians need have worked only three years in the underserved areas rather
than five years.
Question #19: I applied for NIW 6 months
ago, do I have to show 1 yrs of service right now or wait for adjudication of my case?
Carl Shusterman: The regulations establish a two-step process to document whether a physician is
making satisfactory progress toward the five year requirement. Within 120 days after the
two-year anniversary of the NIW approval, the physician must demonstrate that he has
worked at least one year at the VA or in an underserved area. If the physician fails to
meet this requirement, his NIW petition will be revoked. After the physician completes the
five-year requirement, he is again required to document this to the INS. If the INS finds
that he has met the five-year requirement, they will schedule him for a fingerprinting
appointment, and will require a medical examination prior to approving his application for
adjustment of status.
Jennifer Wipf: Mr.
Shusterman has overstayed by 1/2 an hour, and I'm glad we got to so many questions.The
only ones we missed were duplicates or those with incomplete info, or ones that came after
we finished taking questions.
Carl Shusterman: I'd like to
thank all the physicians who participated in this chat for their very excellent questions,
and any nurses or hospitals who entered the chat room today thinking that we were going to
discuss attestations and the H-1C regulations, please accept my apologies. Please join us
a chat on these important new regulations next Monday, September 18th at 6pm PDT, 9pm EDT.
Come 1/2 an hour early to register a question if you'd like. Good night!
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