Visas
AAMC Position
The AAMC believes that H-1B visas are an inappropriate method for
foreign physicians to enter graduate medical education programs
in the United States and prefers that foreign physicians use the
J-1 visa, which specifically accounts for this type of situation
and is designed for educational purposes. As AAMC President Jordan
J. Cohen, M.D., wrote in a September 12, 1994, letter, "the
J-1 classification for foreign physicians has been ably administered
since 1971 by the Educational Commission for Foreign Medical Graduates
(ECFMG), which, among other services, verifies the medical school
credentials of foreign physicians, ensures that the new skills sought
by foreign physicians are needed in their home countries, and requires
that foreign physicians seeking the J-1 visa are accepted for training
by an accredited US graduate medical education program affiliated
with a US medical school. None of these important checks and stipulations
are asked or required of foreign physicians petitioning for H-1B
classification."
H-1B Visas
Medical schools and teaching hospitals, like other academic institutions,
high-tech corporations and technical industries rely on foreign
nationals to maintain their competitive edge. Foreign physicians
not only come to the United States for graduate medical education,
but also to serve as medical researchers, teachers and guest lecturers.
H-1B visas are granted to temporary workers with exceptional abilities
in the specialty professions. While these visas are often given
to high-tech workers such as engineers and computer scientists,
foreign physicians qualify for H-1B visas as persons with exceptional
abilities in the sciences, and persons with skills in short supply
in the United States.
The benefits of the H-1B visa to the foreign physician include
the lack of a two-year home country residency requirement, and the
ability to apply for permanent residency while residing in the United
States.
Congress has placed limitations ("caps") on the number
of new H-1B visa employer petitions that may be approved each fiscal
year, thus limiting the number of H-1B visas issued. The current
cap is 65,000 visas, down from 195,000 visas in FY 2003. This drop
returns the cap to the levels that had existed before 1999. The
raised cap was initiated to address the perceived shortage in high-tech
vocational recruits. Institutions of higher education, related or
affiliated nonprofit entities, and nonprofit or government research
organizations are exempt from the cap.
Under provisions of the L-1 and H-1B Visa Reform Act of 2004 (included
in the FY 2005 Omnibus Appropriations Act), beginning in FY 2005,
up to 20,000 petitions to employ H-1B beneficiaries who have earned
a master's or higher degree from a US institution will be exempt
each fiscal year from the H-1B visa cap. Once the available slots
for these exempt beneficiaries are filled, additional petitions
for beneficiaries with advanced degrees will apply against the 65,000
worker annual cap on H-1B visas. The exemptions are expected to
relieve some of the shortfall in available visas under the existing
H-1B visa program.
Applicants may begin applying for H-1B visas as early as April
1 of the preceding fiscal year (October 1 to September 30). On October
1, 2004, for the first time, the annual cap was met on the first
day of the fiscal year (FY 2005). The US Citizenship and Immigration
Services (USCIS) began accepting applications for the new H-1B petitions
from the 20,000 beneficiaries with advanced degrees for FY 2005
on May 12, 2005.
Provisions in the FY 2005 Omnibus Appropriations Act (PL 108-447)
also reinstituted and raised fees on H-1B petitions that expired
in October 2003. Employers who employ more than 25 full-time equivalent
employees must now pay an additional $1,500 fee to file an H-1B
petition or an extension of stay under an existing H-1B visa for
an employee. For employers who employ no more than 25 full-time
employees, the fee is only $750. These fees are in addition to the
$185 processing fee for the H-1B petition. For employers who wish
to request faster processing of certain employment-based petitions,
an additional premium-processing service if available for an additional
$1000 fee. Exemptions from the fee requirements remain the same
as in October 2003, including the same groups exempted from the
cap (i.e., institutions of higher education, related or affiliated
nonprofit entities, and nonprofit or government research organizations).
In addition, certain teaching hospitals that were excluded from
the definition of "related or affiliated nonprofit entities"
are explicitly exempted from the fee provisions.
The FY 2005 Omnibus Appropriations Act also imposes a new $500
"fraud detection and prevention" fee on all petitioners
under the H-1B program for the initial petition or for a petition
to change employers. The fee must be paid with all petitions filed
on or after March 8, 2005, without exemptions.
J-1 Visas
J-1 visas are designed for exchange visitors, persons interested
in the exchange of knowledge and skills in education, arts and sciences.
Because of the educational focus of the J-1 visa, many foreign medical
graduates obtain these visas for the purpose of entering graduate
medical education programs in the United States. The Education Commission
for Foreign Medical Graduates (ECFMG) is the entity authorized by
the US Department of State to sponsor physicians on the J-1 visa
to participate in accredited graduate medical education (GME) programs
and is responsible for certifying foreign physicians' credentials.
All foreign medical graduates who seek US graduate medical education
positions must be certified by the ECFMG, which entails passage
of Steps 1 and 2 of the US Medical Licensing Examination (USMLE),
the Test of English as a Foreign Language (TOEFL), and the ECFMG
Clinical Skills Assessment (CSA). The ECFMG issued 5,429 Standard
ECFMG Certificates in 2002.
Individuals must also have a contract or official offer letter
from an accredited GME program, and a statement from their home
country that the country has a need for specialists in the area
the individual seeks to receive training.
In 2002, the AAMC, American Medical Association (AMA), American
Board of Medical Specialties (ABMS), and other interested organizations
reached a consensus about eligibility requirements for non-accredited
subspecialty fellowship programs under the J-1 visa program. The
two specific concerns were (1) sponsorship of J-1 exchange visitor
physicians in clinical training programs not independently accredited
by the Accreditation Council for Graduate Medical Education (ACGME),
but directly associated with ACGME programs, and (2) sponsorship
of J-1 physicians in clinical programs whose length exceeds that
of the accredited length for the specialty. The ECFMG outlined the
new policy in an Oct. 18 letter to the Department of State. Effective
July 1, 2003, there would be three pathways for ECFMG J-1 visa sponsorship:
- Programs accredited by ACGME;
- Programs within a specialty or subspecialty where the appropriate
Specialty Board of ABMs offers a certificate; and
- Programs within a subspecialty "recognized" by an
appropriate Board of ABMs as evidenced by a letter from the CEO
of that Board. A number of additional requirements that would
apply to this pathway were identified.
ECFMG sponsorship of J-1 physicians in clinical programs whose
length exceeds the ACGME-accredited length will be limited to accredited
length. However, the guidance notes that ACGME currently has a mechanism
in place for specialties and subspecialties to seek an increase
in their accredited length.
Currently, there is no set limit or cap on the total number of
J-1 exchange visitor visas issued each year; however, J-1 visas
do require that foreign physicians receiving graduate medical education
return to their home countries following completion of their residency
training program for at least two years before they are permitted
to apply for reentry into the United States. J-1 visitors are also
ineligible to apply for permanent residency.
J-1 visitors may apply for a waiver of the two-year foreign residence
requirement under any one of the following circumstances:
- The exchange visitor can demonstrate that his or her departure
from the United States would cause extreme hardship to his or
her United States citizen or lawful permanent resident spouse
or child;
- The exchange visitor believes that he or she will be persecuted
upon return to the home country due to race, religion, or political
opinion;
- The exchange visitor is working on a project for, or of interest
to, a US federal government agency, and that agency has determined
that the visitor's continued stay in the United States is vital
to one of its programs;
- The exchange visitor's government must state that it has no
objection the waiver and the exchange visitor remaining in the
US if he or she chooses to do so. (The law precludes use of this
option by medical doctors who acquired J-1 status for the purpose
of receiving graduate medical education or training); or
- The exchange visitor is foreign medical graduate who has an
offer of full-time employment at a health care facility in a designated
health care professional shortage area.
Waivers may be obtained through a request made on the exchange
visitor's behalf by an Interested Government Agency (IGA). Numerous
federal agencies may seek waivers as IGAs, including the Department
of Veterans Affairs and the Appalachian Regional Commission. The
Department of Health and Human Services (HHS) administers the largest
J-1 visa waiver program. Under this program, HHS permits institutions
and health care facilities to submit requests for physician exchange
visitors to perform research and deliver primary health care services
(defined as general internal medicine, pediatrics, family practice,
obstetrics/gynecology and general psychiatry) in federally designated
Health Professional Shortage Areas (HPSAs) or Medically Underserved
Areas or Populations (MUA/Ps).
Additionally, under the "Conrad 30" program each state
may sponsor waivers for up to 30 J-1 visa holders, who completed
medical residencies in the US, in return for a promise to practice
medicine for three years in a geographic area designated by the
Secretary of Health and Human Services (HHS) as having a shortage
of health care professionals. Physicians who are sponsored for a
waiver by either a federal or state agency will be exempt from the
H-1B cap should they choose to convert their visa status. Additionally,
under a pilot program established in 2004 (PL 108-441), five of
the states' thirty requests may be specialists who can practice
medicine outside of Health and Human Services designated health
shortage areas. The current program is authorized through June 1,
2006.
Security Changes in US Visa Policies
Laws passed after September 11, 2001, focused on ways to improve
border security in the United States, including supplemental applications,
additional interviews, biometric requirements, and the Student and
Exchange Visitor Information System (SEVIS).
Most visa applicants can expect to be interviewed and must now
have two index finger scans collected as part of the visa application
process. These finger scans are normally collected by the consular
officer at the visa interview window, but in some posts they are
collected prior to the visa interview.
All male nonimmigrant visa applicants between the ages of 16-45,
regardless of nationality or other factors, must now complete a
supplemental application form which helps inform the consular officer's
judgment about visa eligibility. In addition to being satisfied
that the applicant intends to honor the terms of the visa by returning
home, the consular officer must carefully evaluate the security
risk presented by the applicant.
All student and exchange visitors, regardless of nationality or
other factors, must complete a supplemental application form which
helps inform the consular officer's judgment about visa eligibility.
Applicants must also get an authorization form from their sponsoring
institution in the US before a visa can be issued. The sponsoring
institution must authenticate the applicant by opening and maintaining
an electronic SEVIS file on a Web-based data management system managed
by the Department of Homeland Security.
SEVIS enables schools and program sponsors to transmit electronic
information and event notifications via the Internet, to the US
Immigration and Customs Enforcement (ICE) and Department of State
(DOS) throughout a student or exchange visitor's stay in the United
States. The system will reflect international student or exchange
visitor status changes, such as admission at Port of Entry (POE),
change of address, change in program of study, and other details.
SEVIS will also provide system alerts, event notifications, and
basic reports to the end-user schools, programs, and immigration
related field offices.
In some cases, the consular officer decides that the applicant
will need a Security Advisory Opinion (SAO), a response from the
federal government on whether to issue a visa to the applicant.
While these visa applications may take longer to process, a US Government
Accountability Office (GAO) report issued February 18, 2005, found
that the Department of State has significantly reduced the time
required for processing of visa applications from international
travelers coming to the United States to work or study in scientific
or technical fields.
An SAO based on sensitive technology transfer concerns is known
as Visas Mantis and, according to State officials, is the most common
type of SAO applied to science applicants. In deciding if a Visas
Mantis check is needed, the consular officer determines whether
the applicant's background or proposed activity in the United States
could involve exposure to technologies on the Technology Alert List
(TAL). The list, published by the Department of State in coordination
with the interagency community and based on US export control laws,
includes science and technology-related fields where, if knowledge
gained from research or work in these fields were used against the
United States, it could potentially be harmful. The Technology Alert
List can be provided by the consulate or by the institution of attendance.
Once the clearance process is complete and a visa is issued, the
individual may apply for admission at a US port of entry. The GAO
report stated that processing a visa under this procedure now requires
about 15 days. Temporary workers and exchange visitors can receive
Visas Mantis clearance valid for the duration of their approved
activity to a maximum of two years.
Additionally, all Consular posts have also been instructed to give
priority scheduling to persons applying for student and exchange
visitor visas in order to accommodate mandatory registration deadlines.
Contacts
Matthew Shick, Senior Legislative Analyst
AAMC Government Relations
mshick@aamc.org
(202) 862-6116
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