Exclusion of Foreign Medical Graduates
Under §212(a)(5)(B) of the Immigration and Nationality Act (the "Act"), graduates of medical schools not accredited by a body or bodies approved for the purpose by the Secretary of Education who are coming to the United States principally to perform services as members of the medical profession are excludable from the issuance of immigrant visas unless they have passed Parts I and II of the National Board of Medical Examiners Examination ("NBMEE") or its equivalent. They must also be competent in oral and written English.
The Foreign Medical Graduates Examination in Medical Sciences ("FMGEMS") administered by the Educational Commission for Foreign Medical Graduates ("ECFMG"), the predecessor to the FMGEMS known as the Visa Qualifying Examination ("VQE") and the United States Medical Licensing Examination ("USMLE"), Steps 1, 2 and 3 are recognized as equivalent to the NBMEE. The NBMEE, FMGEMS and the VQE are no longer offered, although prior passage of these other examinations will satisfy the requirement.
Under §212(a)(5)(B), the alien physician must also establish competence in oral and written English. This is usually done by passing the ECFMG English test. An alien who took the VQE in 1978, 1979 or 1981 is presumed to have met the requirement for competence in oral and written English. However, an alien who took the VQE in 1977, 1982 or 1983 must present separate evidence of oral and written competence in English. An alien physician may also satisfy this requirement in certain circumstances by showing recent passage of the Test of English as a Foreign Language ("TOEFL").
Several exemptions from the examination requirements imposed by §212(a)(5)(B) are available. For example, §212(a)(5)(B) applies only to "graduates of a medical school". The phrase "graduate of a medical school" is defined in the Act as an alien who has graduated from a medical school or has qualified to practice medicine in a foreign state, other than aliens of national or international renown in the field of medicine. The definition does not appear to include an alien who has graduated from a medical school in the United States. Therefore, Canadians who have graduated from a medical school in the United States are not subject to the §212(a)(5)(B) examination requirements.
Aliens of national or international renown are also excluded from the statutory definition of "graduate of a medical school". Such foreign physicians are exempt from both the §212(a)(5)(B) examination requirements and the requirement to demonstrate competence in written and oral English. Difficulty arises in the fact that "national or international renown" is not defined in the Act. Generally, the evidence submitted would have to show a degree of excellence comparable to that which would normally result in
national renown in the United States.
§212(a)(5)(C) of the Act states that the exclusionary provision contained in
§212(a)(5)(B) applies only to the second preference (professionals holding advanced degrees) and third preference (professionals holding bachelor degrees) employment-based categories which are described in further detail below. Foreign physicians seeking immigration under categories such as family immigration would not be subject to the exclusion contained in §212(a)(5)(B), even if they intended to perform services as members of the medical profession.
§212(a)(5)(B) specifically states that its requirements do not apply to a graduate of a medical school who was fully and permanently licensed to practice medicine in a U.S. state on January 9, 1978 and was practicing medicine in a U.S. state on that date. However, such aliens must still establish proficiency in written and oral English.
An exemption is also available for graduates of a medical school "accredited by a body or bodies approved for the purpose by the Secretary of Education or his or her designee". The only approved body is the LCME and it limits itself to evaluating and accrediting only medical schools located in the United States and Canada. Graduates of United States or Canadian medical programs accredited by the Liaison Committee for Medical Education ("LCME") are not required to have passed Parts I and II of the NBMEE. A student or graduate of a foreign medical school that has not been accredited by the
LCME must pass Parts I and II of the USMLE in order to avoid excludability.
Finally, as the exclusionary provision applies to foreign physicians who are
entering the United States "principally to perform services as members of the medical profession", the requirements of §212(a)(5)(B) will not apply to those foreign medical graduates who seek to enter the United States for such reasons as teaching or research involving no patient care.
Employment-Based Immigration Categories
Assuming that a foreign medical graduate has complied with the requirements of §212(a)(5)(B) or is exempt therefrom, he or she must still qualify under an employment-based permanent residence category. Although the employment-based categories are briefly discussed here, it is recommended that readers also refer to the general information section relating to employment-based immigration.
The first preference employment-based category requires no labor certification as a condition of visa issuance. Labor certification is similar to the employment validation process in Canada. In other words, persons falling under the first preference category are not required to establish that they are not taking jobs from qualified U.S. workers. The
first preference consists of three subgroups, the two relevant subgroups being: (a) aliens of extraordinary ability, and (b) outstanding professors and researchers.
Foreign medical graduates applying under the first subgroup are not required to have a job offer but must possess extraordinary ability in the sciences which has been demonstrated by sustained national or international acclaim and their achievements must have been recognized in the field through extensive documentation. Persons applying under the second subgroup must be internationally recognized as outstanding in their specific academic area, have a minimum of three years of experience in teaching or research in the area and be entering the U.S. in a tenure or tenure track teaching or
comparable research position at an institution of higher education. Given the extremely high standard which is applied, only the most well-known physicians will be approved under this category.
The second preference employment-based category consists of two subgroups: (a) members of the professions holding advanced degrees, and (b) aliens of exceptional ability in the sciences. An advanced degree means any academic degree or a foreign equivalent degree above that of baccalaureate. As the next higher degree in the United States is a master's degree, an advanced degree is therefore considered a United States master's degree or foreign equivalent. The word "exceptional" in the context of this category
means that the individual must have a degree expertise significantly above that ordinarily encountered.
In the United States, a medical degree is generally considered an advanced degree because it requires a bachelor degree as a prerequisite. However, some Canadian medical schools do not require a bachelor degree as a prerequisite to admission. It is arguable that a Canadian physician from such a medical school will not have an advanced degree for immigration purposes. However, a United States bachelor degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master's degree. In most case, the issue will be irrelevant.
Under the second preference, the foreign worker must normally have a job offer and obtain a labor certification for the proposed position. However, the requirements of a job offer and labor certification can sometimes be avoided by obtaining a national interest waiver. Such waivers of are provided where the foreign worker can establish that his or her admission would be in the national interest, perhaps by improving health care. A
foreign physician who intended to provide medical services in a rural community where such services would otherwise be unavailable may qualify for a national interest waiver. The most substantial difference between the second and third preference categories is the availability of national interest waivers.
The third preference employment-based category consists of skilled workers,
professionals and "other workers". Canadian physicians seeking permanent residence in the United States who cannot demonstrate an advanced degree or equivalent will fall under the third preference.
The relevant subgroup in the context of foreign medical graduates is the subgroup of "professionals". The Act specifically includes physicians within the definition of "profession". Professionals must possess a United States bachelor degree or foreign equivalent in the field and must establish that a bachelor degree is the normal requirement for entry into the profession.
Third preference workers must have a job offer prior to acquiring permanent
residence. No waiver of the job offer requirement is available under the third preference category.
Labor certification is also required under the third preference category. While it is possible to avoid labor certification in the third preference as an alien of "exceptional ability in the sciences" under the Department of Labor's regulations, they generally apply the same standard of "extraordinary ability" that the Immigration and Naturalization Service will apply in first preference employment-based cases. In other words, anyone who will qualify for precertification under the Department of Labor regulations would
probably qualify under the first preference employment-based category in any event.
Under the employment-based permanent residence categories, there is no
requirement for a member of a profession to establish that he or she is licensed to practice that profession in the United States. Therefore, there is no requirement that such evidence be submitted with the petition for permanent residence.