Each of the visa programs mentioned in our two recent articles (F-1, J-1, H-1B) is a temporary residence program (among which include also the O-1, TN and E-2 visas, which we will discuss in future posts). In other words, it only grants the foreign national the right to reside in the U.S. temporarily for a specified period of time (e.g., up to six years) or for a specified purpose (e.g., to attend medical school). This article will deal briefly with some of the primary ways one may obtain permanent residence status, particularly as it pertains to the employment options most often utilized by foreign-born physicians.
To obtain permanent residence status, a foreign national must establish a basis for this status. There are numerous bases for permanent residency, including amnesty, asylum, employment and relatives currently residing in the U.S. There is even a green card lottery. However, the most common basis for employment-based permanent residence is the labor certification. On this basis, a U.S. employer may sponsor a foreign national for permanent residence; provided that: (1) there are no U.S. workers to fill the position, and (2) the foreign national fits into one of the permitted classes of workers. For this purpose, physicians qualify as advanced degree professionals.
Another basis for employment-based permanent residency is the national interest waiver. To qualify, the person must be either (1) an advanced degree professional (i.e., U.S. equivalent master's degree or higher), or (2) an individual with an “exceptional ability.” A person has exceptional ability if they possess a degree of expertise significantly higher than the ordinary. Furthermore, the foreign national must demonstrate that their prospective employment would advance a stated national interest of the U.S., such as improved healthcare, education or technological competitiveness.
The standards for demonstrating national interest are quite high. For instance, foreign physicians must demonstrate that their work in the U.S. would serve the national benefit to a greater degree than would the average U.S. physician. This is only usually the case with researchers and specialists. However, Congress has created a special national interest waiver program for foreign physicians. To qualify, a foreign physician must agree to practice primary care medicine in an underserved area for a period of five years.
Foreign physicians interested in research or teaching positions may be eligible for permanent residence as outstanding professors or researchers. To apply, the physician must have an employer sponsor (either a university or research facility) and demonstrate international acclaim as a researcher or professor.
Physicians can also self-sponsor as extraordinary ability aliens if they can demonstrate national or international recognition as a physician at the top of the field.