IMMIGRATION OPTIONS
FOR HEALTHCARE
PROFESSIONALS
Presented by:
Iandoli Desai &
Cronin, PC
Madeline C. Cronin
M a r y E . Wa l s h
PRESENTATION FOR
MASSACHUSETTS COLLEGE OF PHARMACY
AND HEALTH SCIENCES
MARCH 17, 2015
38 Third Ave.,
Suite 100
Boston, MA 02129
(617) 482-1010
w w w. i a n d o l i . c o m
OVERVIEW OF IMMIGRATION CATEGORIES
U.S. CITIZENS
FOREIGN NATIONALS
Immigrants: Lawful Permanent Residents –
Immigrants or Green Card Holders
Nonimmigrants: Persons Permitted in US for
Temporary Stay
Refugees/Asylees/TPS
Persons present without lawful status
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H-1B BENEFITS
BENEFITS:
 The preferred way to stay in the U.S. after OPT
 No “intent” problems as in F or J or TN status
 Can have concurrent H-1B employment
 H-1Bs are non-competitive. You do not have to be
the best or only candidate.
 Part-time study allowed
 Spouse & minor children eligible for H -4 status
 As of May 26, 2015, certain H-4 spouses whose H-1B
spouse has an approved I-140 and/or whose spouse
has been granted H-1B status under sections 106(a)
and (b) of the AC21 will be eligible to apply for an
employment authorization card (EAD)
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H-1B LIMITATIONS
LIMITATIONS:
 Requires Employer (no self-employment or contract work)
 Employer must demonstrate bona fide job: issue with small &
new employers
 H-1B stay not to exceed 6 years, does not include actual time
out of the U.S. or in the H-4 status. N.B.: exception for 1 year
increments beyond the 6 th year if Application for Labor
Certification filed before end of 5 th year.
 6 year clock rewinds if worker spends 1 year outside U.S.
 H-1B status is not an H-1B visa for travel!
 Generally H-4 spouse and child cannot work (*Unless the H-4
qualifies is at certain stages of the per manent resident process
– see slides 3 and 21)
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H-1B CRITERIA
 Sponsorship by U.S. Employer
 Annual Quota for Cap-Subject Employer
 Professional Position/Specialty Occupation
 Candidate Possesses Degree or Equivalent in Related
Field
 Candidate Possess License and Healthcare Worker
Certificate (if applicable)
 Required Wage & Ability to Pay
 Employer required to pay H-1B legal/filing fees
 Candidate must be in status to change status
 Full and Part-time employment allowed
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ANNUAL H-1B QUOTA & TIMING
 Annual, national quota of 65,000 new H -1B positions
 Additional 20,000 H-1Bs for holders of a U.S. Master’s
degree or higher
 Colleges, universities & affiliated non-profits exempt
from quota
 Other cap exemptions
 Petitions must be filed for April 1 st each year
 Cap gap protection for F-1 students on OPT
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FOUR WAYS TO MEET DEFINITION OF
SPECIALTY OCCUPATION
1) A Bachelor’s degree or equivalent is nor mally the
minimum requirement for entry into the position;
2) A Bachelor’s degree is common to the industry or, in
the alternative, the employer can show that the position
is so complex that it must be performed by individual
with a degree;
3) The employer nor mally requires a degree or equivalent
for the position; or
4) The nature of the specific duties of the position are so
complex that the knowledge required to perform the
duties is usually associated with the attainment of at
least a bachelor’s degree.
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OPT & CAP GAP
 What is “Cap Gap”?
 Period between time an F-1 status would ordinarily end and his or her H -1B status begins
(October 1 st ).
 Can get Cap Gap even if H-1B filed during 60 day grace period but will not have work
authorization.
 Cannot travel abroad
 If H-1B filed after grace period, will have to depart U.S. and wait for October 1 st .
 Cap Gap ter minates if H-1B petition is rejected, denied or revoked.
 If your deg ree prog ram is a designated STEM (Science,
Technolog y, Engineering or Math) deg ree, you will qualify for a 17
month OPT as longer as your employer is registered with E -Verify
 List of STEM degrees: http://www.ice.gov/doclib/sevis/pdf/stemlist.pdf
 Some degrees that appear to be STEM may not be on the list so be sure
to confirm and do not just assume (i.e., Pharmacy, Physical Therapy,
Nurses (RN and NP), Speech Language Therapists)
 Date of deg ree prog ram completion and timing issues (winter v.
spring g raduation dates)
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LICENSING REQUIREMENTS
 If the occupation requires a license to practice legally in the state
of employment, then one must be available at the time of filing the
H-1B petition.
 US Immig ration regulations also require healthcare workers to
obtain certifications, e.g., the Commission on Graduates of Foreign
Nursing Schools (CGFNS):
 The following health care occupations require a certification
under 8 CFR 212.15(c): Nurses, physical therapists, occupational
therapists, speech language pathologists, medical technologist,
medical technicians and physician assistants.
 You must obtain one even if you earned a U.S. degree
 For complete details visit: http://www.uscis.gov/working-unitedstates/temporary-workers/health-care-worker-certification
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HOW TO INCREASE CHANCES
 Cap-Subject vs. Cap-Exempt Employers
 Concurrent employment (just one part -time job with a
cap-exempt employer will allow the other cap -subject
employers to “pig gy-back” off the cap-exempt status)
 Search for medical schools and affiliated hospitals that
are cap-exempt and find out if they do H-1Bs
 Start working for employers as soon as possible
 Search for employers outside of Boston/other states (too
competitive)
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PROCESSING OF H-1B PETITIONS
 Two main steps:
 Labor Condition Application approval by Department of Labor
(DOL) which requires determination of prevailing wage
 Filing of Form I-129, Petition for Nonimmigrant Worker &
Supporting Documents with appropriate DHS office
 Nor mal Processing vs. Premium Processing
 Change of Status vs. Consular Processing
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H-1B FEES
Filing Fee for Form I-129 - $325
Anti-Fraud Program Fee - $500
U.S. Worker Training Fee - $750 or $1,500, some
employers exempt from fee
Premium Processing Fee - $1,225 optional
Attorney’s Fee – varies
Who pays which Fee?
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ALTERNATIVES TO THE H-1B
B-1: Visitor for Business
E-1/E-2: Treaty Trader or Treaty Investor
E-3: Australian National Professional
F-1: Higher Degree & New OPT
J-1: Exchange Visitor
L-1: Intra-company Transferee
O-1: Person of Extraordinary Ability
TN: Canada & Mexico
Q-1: Cultural Exchange Program Participant
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FREE TRADE AGREEMENT
PROFESSIONALS
 NAFTA: Mexico and Canada (TN)
 Offered job must be one that is identified by the treaty
 3 year admission; extendable in 3 year increments
 TN Candidate must have degree or professional license
 FTA: Singapore and Chile (H-1B1)
 Open to any specialty occupation
 Employer required to make wage attestations
 1 year admission; extendable in 1 year increments
 USCIS action not required if worker is abroad
 Worker may apply for visa directly at US consulate; no USICS
pre-approval required
 Worker must demonstrate that she has permanent home outside
of US that she will return to at the end of stay
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PATHWAYS TO LAWFUL PERMANENT
RESIDENCE
Family Based
Employment Based
Diversity Lottery
Investment
Asylum/Refugee
Cancellation of Removal
Registry
Others: VAWA, Comprehensive Immigration
Reform (CIR)
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PRIMARY EMPLOYMENT BASED
CATEGORIES
EB-1(a) Persons of Extraordinary Ability
EB-1(b) Outstanding Professors & Researchers
EB-1(c) Multinational Managers & Executives
EB-2* Master’s Degree or Equivalent (Bachelor’s
+ 5 years) / Exceptional Ability / National
Interest Waiver
EB-3* Bachelor’s Degree/Skilled Workers
* = Most commonly used by most health professionals
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CATEGORY & COUNTRY QUOTA
BACKLOGS
Annual Quota is divided by Category and Country
of Chargeability
The backlogs occur both in the category and
country queues. See: Visa Bulletin in materials
Significant backlogs in some categories and for
some countries
Planning the entire process early, while
maintaining legal nonimmigrant status is critical
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VISA BULLETIN
MARCH 2015
EMPLOYMENT
BASED
IMMIGRANT
CATEGORIES
ALL OTHER
COUNTRIES
CHINA
INDIA
MEXICO
Philippines
EB-1
Current
Current
Current
Current
Current
EB-2
Current
15 Mar 2010
01 Sept 2005 Current
Current
EB-3
01 Jan 2014
1 Sept 2011
22 Dec 2003 01 Jan 2014
01 Jan 2014
Other Worker
01 Jan 2014
15 Aug 2005
22 Dec 2003 01 Jan 2014
01 Jan 2014
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LABOR CERTIFICATION
V.
LABOR CERTIFICATION EXEMPT
EB-1’s do not need Labor Certification
EB-2’s DO need Labor Certification
except those with a National Interest
Waiver
EB-3’s DO need Labor Certification
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PERM PROCESS OVERVIEW
Step 1: L ABOR C ERTIFICATION A PPLICATION (PERM)
 Requires employers test U.S. labor market to deter mine
whether there are qualified, willing & able U.S. workers
for the position offered to the foreign national.
 Six recruitment efforts are required
 Prevailing Wage Request with DOL required (6 weeks)
 The recruitment phases (2 months)
 Labor Certification application (PERM) is submitted to
the Department of Labor via the online system.
 Adjudication time approximately 6 - 8 months
 25%-30% PERMs randomly audited
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20
PERM PROCESS OVERVIEW
S TEP 2. P ETITION
FOR
I MMIGRANT W ORKER (F ORM I-140)
 Required certified PERM
 Proof of ability to pay offered wage (i.e., federal tax returns,
audited financial statements, and annual reports.
 Foreign national must provide documentation of meeting the
requirements for the position set forth above (deg ree and
experience letters).
 Processing time is about 6 months unless premium processed
 Once the I-140 is approved, certain H -4 spouses may be eligible to
apply for employment authorization.
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PERM PROCESS OVERVIEW
S TEP 3. A PPLICATION
FOR
A DJUSTMENT
OF
S TATUS (F ORM I-485)
 Foreign national must maintain legal status (i.e., H-1B).
 If in U.S., foreign national files For m I-485 to have status changed
from nonimmig rant to per manent resident if a visa number is
available.
 Can only file a For m I-485 when their immig rant visa employment
preference is “Cur rent”.
 If no visa number available, foreign national may have to wait several
years to file For m I-485 and must maintain nonimmig rant status.
 Benefit of I-485 is that once it is filed, foreign national may obtain an
employment authorization card and travel document, which in some
cases may be better than tr ying to extend the nonimmig rant status.
 Dependents will also be able to file for employment authorization and
travel per mission (if not eligible sooner).
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