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Nonimmigrant Options for Physicians

Written by Henry J. Chang

The following is a brief discussion of the three most appropriate non-immigrant categories available to Canadian physicians seeking employment in the United States. However, it is recommended that readers also refer to the detailed general discussion section relating to the TN, H-1B, J-1, O-1, and E-2 categories.

J-1 Exchange Visitor

Foreign medical graduates who wish to enter the United States to pursue an internship, residency or other clinical training in the U.S. under J-1 status may be sponsored by the Educational Commission for Foreign Medical Graduates ("ECFMG"). Many physicians who enter the United States for the purpose of engaging in clinical training will do so under the J-1 category.

Unfortunately, a foreign medical graduate who enters the United States under J-1 status will be subject to several restrictions under §212(e) of the Immigration and Nationality Act. This section imposes a two-year home country presence requirement on certain J-1 aliens (including all foreign medical graduates).

As a result of this requirement, the alien must return to his or her home country for at least two years before becoming eligible for H status, L status or permanent residence, unless a waiver of this requirement can be obtained. While the requirement is effective, the alien is also not eligible for a change of status to any other category. For this reason, it is advisable for physicians to seek an alternate nonimmigrant category whenever possible.

The H-1B Specialty Occupation

For the purpose of physicians, the H-1B category was previously restricted to teaching and research only. While some patient care incidental to teaching and research was permitted, in general only aliens of national or international renown were permitted to engage in direct patient care.

The Immigration Act of 1990 removed this restriction. Canadian physicians who intend to provide direct patient care may do so under H-1B status. Canadian physicians who intend to engage in teaching or research but who are not eligible for TN status (for example, physicians who are landed immigrants rather than Canadian citizens) may still perform such functions under the H-1B category.

Canadian physicians seeking entry to the United States to engage in graduate medical education or training may also do so under H-1B status as an alternative to J-1 exchange visitor status. J-1 status is subject to several limitations, including a requirement that the alien return to his or her home country for at least two years before being eligible for a permanent residence category. By pursuing graduate medical education or training under H-1B status, the physician can avoid these limitations.

A Canadian physician must establish that, if a license to practice or other authorization is required by the state where the employer is located, she has such a license or authorization. The Canadian physician must also have an M.D. degree or in the alternative a full and unrestricted license to practice medicine in Canada.

Canadian Physicians who intend to engage in direct patient care are required to have passed the Federation Licensing Examination ("FLEX"), which is administered by the Federation of State Medical Boards of the United States, or an equivalent examination as determined by the Secretary of Health and Human Services. The Department of Health and Human Services has designated the following two examinations as equivalent to the FLEX: (a) the National Board of Medical Examiners Examination ("NBMEE") Parts I, II, and III; and (b) the United States Medical Licensing Examination ("USMLE") Steps 1, 2 and 3. Although the USMLE is the only examination currently being administered, prior passage of the FLEX or NBMEE will satisfy the examination requirements.

Such physicians must also establish competence in the English language by passing the Educational Commission for Foreign Medical Graduates ("ECFMG") English test unless he or she has graduated from a medical school accredited by the Liaison Committee for Medical Education ("LCME"). As all Canadian medical schools are accredited by the LCME, graduates from such schools are not required to write the ECFMG English test.

There are exceptions to these examination and language requirements. Physicians of national or international renown and graduates of U.S. medical schools are not required to comply with these requirements. Further, physicians engaged in teaching or research functions for a public or private non-profit educational research institution and who only perform direct patient care incidentally thereto are not required to fulfill these requirements.

The above requirements make the H-1B category less desirable from the Canadian physician's point of view. The H-1B category also imposes employer obligations and penalties for non-compliance which make it less desirable from the employer's point of view. Nevertheless, where direct patient care is involved, the H-1B is often the most appropriate option available to the Canadian physician.

H-1B status is granted initially for up to three years. Extensions of up to three years at a time may be requested to a maximum total stay of six years. The H-1B worker must then reside outside the United States for at least one year before becoming eligible for H status again.

TN Physician Engaged in Teaching and/or Research

The North American Free Trade Agreement ("NAFTA") provides for a non- immigrant category known as "TN" or "Trade NAFTA". It replaces the previous "TC" category which arose from the Canada-U.S. Free Trade Agreement ("CFTA"). As NAFTA applies only to Canadian citizens, permanent residents of Canada are ineligible for TN status.

While the old CFTA apparently permitted Canadian physicians to engage in direct patient care while in TC status, NAFTA now makes it clear that the TN category may only be used for teaching and research purposes. However, the phrase "teaching and research" appears broad enough to include clinical work conducted as part of a medical school's teaching or research program.

In order to establish the necessary professional qualifications under the TN category, the Canadian physician must possess an M.D. degree, provincial license or state license. If licencing is required in the state where the proposed employer is located, the Canadian physician must also possess such a license.

A Canadian physician may apply for TN status at a port of entry just prior to entering the United States. TN status is valid for a maximum initial period of one year with eligibility for an unlimited number of one-year extensions.

O-1 Aliens of Extraordinary Ability

Certain alien physicians having extraordinary ability may be eligible for O-1 status. For aliens in the field of science, the term "extraordinary ability" is defined in Title 8 of the Code of Federal Regulations (the "Immigration Regulations") as a level of expertise indicating that the person is one of the small percentage of who have arisen to the very top of their field of endeavor".

Clearly, this is a high standard that most physicians will be unable to establish. However, where the alien is able to establish extraordinary ability, the O-1 is a better alternative than the J-1 exchange visitor category.

E-2 Treaty Investor

The E-2 visa category was originally established to give effect to "bilateral investment treaties" between the United States and foreign countries. It is therefore intended to be used for the purpose of overseeing investment in the United States. The existence of NAFTA makes Canadian citizens eligible for this category. A Canadian physician may therefore qualify as an E-2 principal investor for the purpose of setting up her own medical practice in the United States. This was confirmed several years ago in a letter from the United States Consulate-General in Toronto. The text of this letter is available here.

A Canadian physician seeking E-2 status must show that she has either made a substantial investment or is actively in the process of making a substantial investment in a U.S. business. Substantiality is determined by considering the amount of the qualifying investment relative to the total cost of the existing or proposed business. The funds must be irrevocably committed and personally at risk in order to qualify. In addition, the investment must not be marginal. A Canadian physician must show either that the investment will expand employment in the locality of the business or that she has substantial income from other sources to support herself.

The Canadian physician must be responsible for the development and direction of the investment. Where direct patient care will be involved, she must show that she has a license to practice medicine in the state of intended employment. E-2 visas are initially issued to Canadians for a period of five years and may be extended for five years at a time with no limit on the number of extensions permitted.

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