A U.S. employer may obtain permanent residence ("green card") status for a foreign-born physician if the employer can demonstrate that he or she is unable to locate a U.S. physician to fill the position.
An employer may obtain permanent residence for a foreign-born physician utilizing the following three step process:
- Application for alien labor certification from U.S. Labor Department (DOL)
- Submission of visa petition to US Citizenship and Immigration Services
- Application for permanent residence from US Citizenship and Immigration Services or U.S. Embassy or Consulate abroad
Step one: labor certification
Unless the physician in question is a "person of extraordinary ability in the sciences" or his employment is clearly in the "national interest", his employer must undergo the labor certification process in order to obtain permanent residence on his behalf.
Although this procedure varies somewhat from state to state, an employer is usually required to place a job advertisement for a physician in an appropriate national journal. The ad must describe both the employment offered in terms of the job duties and the salary and the qualifications required to perform the job. The offered salary may not be less than the prevailing wage. The name of the employer need not be mentioned in the ad.
After reviewing the resumes received and interviewing any applicants who profess to be qualified for the position, the employer must demonstrate to the Labor Department that there are no U.S. physicians ready, able and qualified to perform the job.
In contrast to the requirements for obtaining H-1B status, an employer need not require that an applicant for permanent residence have passed the FLEX exam for foreign physicians, or even that he has obtained a medical license in the state of intended employment.
There is an exception to the labor certification requirement for physicians whose employment would be in the "national interest". Generally, physicians who intend to practice in medically underserved areas for a minimum of five years may petition the US Citizenship and Immigration Services to bypass the labor certification requirement. Even physicians who are independent practitioners rather than "employees" are eligible to apply for national interest waivers. However, US Citizenship and Immigration Services regulations restrict which physicians are eligible for national interests waivers, and how they qualify to do so.
Step two: visa petition
Once the Labor Department has approved the alien labor certification, the employer must submit a petition to INS to classify the physician under the appropriate category for permanent residence. Most physicians qualify under the employment- based second category as professionals holding advanced degrees.
The employer must demonstrate that they have the financial ability to guarantee the physician's salary. They must also establish that the employment is full-time with no definite termination date. Documents evidencing the physician's education and prior experience must be attached to the petition.
Step three: application for permanent residence
If the physician's priority date is "current" (There are numerical backlogs which govern the length of time that a physician with an approved visa petition must wait to file an application for a green card. However, presently, there is no backlog for physicians.), the physician and his family may apply for permanent residence either at the US Citizenship and Immigration Services office having jurisdiction over his place of residence in the U.S. at the same time that the visa petition is submitted. Alternatively, once the visa petition is approved, they may apply for permanent residence at a U.S. Embassy or Consulate in the physician's home country. When the application is made to US Citizenship and Immigration Services, it is known as an application for "adjustment of status." When it is made abroad, it is called an application for an "immigrant visa".
Simultaneously with the submission of the application for adjustment of status, US Citizenship and Immigration Services offices permit applications for employment authorization and "advance parole" (which is a travel document) to be filed on behalf of the physician, his spouse and children.
All applicants for permanent residence must show that they are not "excludable" from the U.S. Grounds for excludability may include certain criminal convictions, immigration fraud, subversive activities and infection with certain dangerous contagious diseases.
