PERMANENT RESIDENCE FOR THE FOREIGN PHYSICIAN
Who Benefits?

Health care employers that employ foreign physicians are often asked to support or sponsor the physician in the permanent residence process. What are the incentives for the physician to seek U.S. permanent residence, and how does the employer benefit from the process?

From the physician's perspective, U.S. permanent residence is an important objective, if the physiciann intends to live and work in the United States long term. Physicians who have received graduate medical training in the United States have many quality of life and financial incentives to remain in the U.S. after they have completed their residency or fellowship training. Whether they trained as a J-1 Exchange Visitor, or as an H-1B specialty occupation worker, they will typically need to enter the medical work force in H-1B status. If they trained as J-1, they have up to six years to work in H-1B status, and time within which to complete the permanent process time. However, the physician who has trained as H-1B has used up 3 to 4 years, and in some cases 5 years of H-1B time. These physicians are on a much tighter time schedule within which to commence and complete their permanent residence process.

Physicians who are India or China born have a different problem. The India and China categories in the second employment based categories are chronically backlogged. Indians and Chinese can expect to wait 2-4 years longer than other nationalities, for the availability of a permanent visa. A place in the visa queue is established when the employer commences the permanent residence process, through the filing of an application for alien labor certification (PERM). Bottom line: Employers of Indian and Chinese born physicians should commence the process as quickly as possible.

For other nationalities, it is also a good idea to begin the PERM process as soon as possible, as it is also possible for the "rest of the world" to develop backlogs in the visa queue, and as in all immigration procedures, delay is seldom helpful, what with processing delays and other unexpected issues that can arise.

What does the employer benefit from this somewhat expensive and complicated process? First, it is helpful to remember that immigration sponsorship by an employer is not mandatory, it is totally discretionary. But as a practical matter, it is usually desirable to sponsor the physician, in order to improve the chances for long term physician retention. Sponsorship for immigration does not guarantee that the physician will stay beyond completion of the permanent residence process. However, employer refusal to sponsor practically guarantees that the physician will leave, because he or she definitely needs a permanent residence case in order to stay in the U.S. beyond the six-year H-1B limit.

Secondly, immigration sponsorship is a useful recruitment tool. An employer who is willing to offer an immigration budget as part of the physician contract, has a greater chance of recruiting the physician. 

Permanent residence sponsorship usually is beneficial to both employer and physician. Usually, it is advisable to start the immigration process as soon as possible, in order to establish a place in the visa queue.

USCIS Updates H-1B Cap Count

On April 19, 2012 the USCIS provided updated information on the number of fiscal year 2013 H-1B petitions received so far. 20,600 regular H-1B petitions have been received and 9,700 Masters degree petitions have been received, for a total of 30,300. At this rate, the total of 85,000 cases could be exhausted in 1-2 months from now.

US Department of State Announces EB2 Cut-off

Today, AILA released this announcement from the U.S. Department of State:

DOS Confirms China-Mainland Born and India EB-2 Cut-offs

Charlie Oppenheim, Chief of Visa Control at the State Department, has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later. Visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established. Mr. Oppenheim understands that USCIS will contine to receive and process applications for adjustment of status for aliens with priority dates prior to the date established in the April 2012 Visa Bulletin, and those cases with priority dates of August 15, 2007, or later, will be forwarded to and held by Visa Control at DOS in a "pending" file until new visas are available beginning with FY2013 on October 1, 2012. Mr. Oppenheim advises that an item in the May Visa Bulletin will address the EB-2 movement.

Lobbying For Senate Bill 1979 Permanent Reauthorization of Conrad 30

On March 30, 2012, immigration attorney Barry Walker visited Congressional staffers at the Capitol in Washington, D.C. for the purpose of urging members of Congress to pass Senate Bill 1979. S. 1979 is a bill that would permanently extend the Conrad 30 program. The Conrad 30 program was passed by Congress in 1994, and it gives the States the standing to make J-1 waiver recommendations for J-1 physicians who pledge to come to medical shortage areas in the United States for three years. Our State of Mississippi is one of the States that suffers from a severe shortage of primary care and sub-specialty physicians, especially in our rural counties, where a major portion of the population lives below the U.S. poverty level. If S.1979 is passed, more foreign physicians will be encouraged to come to underserved areas. Currently, those foreign physicians who obtain graduate medical training in the U.S., as H-1B nonimmigrants, do not need a waiver of the foreign residence requirement, and so they have no incentive to serve in an underserved area in the U.S. S.1979 would provide several immigration advantages to H-1B physicians, if they agree to serve in an underserved area. They would enjoy an exemption from the H-1B numerical limitation (the H-1B cap) and they would be able to obtain classification as a first employment based immigrant (EB-1).
In our conversations with various Congressional staffers, we heard of no one who has any objection to this legislation. Hopefully it has a good chance of passage, and will likely be voted on prior to the September 30, 2012 end of the current Congressional session.

ANOTHER LOOK AT AMERICAN ENTERPRISE INSTITUTE REPORT: Immigration and American Jobs

Back in December 2011, we linked to the newly released American Enterprise Institute report on Immigration and American Jobs. I think it is worth looking back on that report to note the extremely compelling case that the AEI makes for increased levels of immigration of highly skilled workers to the United States. I am constantly referring to this report, especially in light of the continuing difficulty that all of my business clients experience in dealings with the U.S. Citizenship and Immigration Service. The field adjudication officers of the USCIS seem to maintain a “zero-sum” perspective on the relation between the immigration of foreign workers and the employment of U.S. workers. USCIS practices have a chilling effect on job creation and economic growth.

What the AEI report provides empirical evidence that the entry of highly skilled foreign workers to the U.S. actually creates additional jobs for U.S. workers.

The AEI report shows as follows:

1. Immigrants with advanced degrees boost employment for US natives. This effect is most dramatic for immigrants with advanced degrees from US universities working in science, technology, engineering, and mathematics (STEM) fields. The data comparing employment among the fifty states and the District of Columbia show that from 2000 to 2007, an additional 100 foreign-born workers in STEM

fields with advanced degrees from US universities is associated with an additional 262 jobs among US natives.

2. Temporary foreign workers—both skilled and less skilled—boost US employment. The data show that states with greater numbers of temporary workers in the H-1B program for skilled workers and H-2B program for less-skilled nonagricultural workers had higher employment among US natives. Specifically:

• Adding 100 H-1B workers results in an additional 183 jobs among US natives.

• Adding 100 H-2B workers results in an additional 464 jobs for US natives.

3. The analysis yields no evidence that foreignborn workers, taken in the aggregate, hurt US employment.

4. Highly educated immigrants pay far more in taxes than they receive in benefits. In 2009, the average foreign-born adult with an advanced degree paid over $22,500 in federal, state, and Federal Insurance Contributions Act (FICA, or

Social Security and Medicare) taxes, while their families received benefits one-tenth that size through government transfer programs like cash welfare, unemployment benefits, and Medicaid.

On the basis of these findings, the AEI made the following recommendations for improvements in immigration policy:

The results here point directly to several policy proposals that would boost US employment. These policies would require neither new taxes nor new spending cuts. Specifically, policymakers could create jobs by doing the following:

• Giving priority to workers who earn advanced degrees from US universities, especially those who work in STEM fields.

• Increasing the number of green cards (permanent visas) for highly educated workers

• Making available more temporary visas for both skilled and less-skilled workers.

We think that this AEI report is extremely valuable. It should provide guidance and empirical evidence to policy makers charged with forming immigration policy. It clearly shows that for the foreseeable future, skilled foreign workers will be vital to economic growth in the U.S.

Mississippi Should Not Enact Any New Immigration Legislation

The Mississippi State Legislature is currently in session. There have been at least three bills introduced in the State Senate and referred to committee, that seek to regulate immigration issues to some extent. These bills are most similar to the Arizona immigration statutes in that they require state and local law enforcement officers to determine the lawful status of persons, who are encountered in the course of police activities, and where there is "reasonable suspicion" that the person is either an alien or is unlawfully present. Another bill provides that an alien who possesses a false drivers license of identity document is guilty of a felony and the law would prescribe a 10 year prison sentence. This is a terribly harsh penalty, since many of these undocumented persons are married to U.S. citizens, are parents of U.S. citizen children and are trying to stay employed in order to support their families.

There are several reasons why the Mississippi State Legislature should refrain from passing any immigration related laws during the current year. The U.S. Supreme Court has announced that in April, it will hear the cases relating to Arizona's immigration laws, and the Court will consider the fundamental question of whether a State can regulate in the area of immigration, or whether the whole subject matter is controlled and preempted by federal law. It makes no sense for Mississippi to become entangled in this costly litigation, when it could simply wait one year to be sure of the exact scope of its authority in this field. Further, it is now clear that the Arizona and Alabama efforts to regulate immigration have severely damaged the business environments of these states. Last, but not least, these state immigration laws have a dreadful humanitarian and human rights impact on vast segments of our population, including U.S. citizens, lawful permanent residents as well as undocumented aliens.

The Mississippi State Legislature would be wise to simply refrain from any action during the current legislative session, to await the outcome of the U.S. Supreme Court decision. In any event, the public interest of the State would be well served if the Legislature stayed out of the business of regulating immigration.

Visa Bulletin Advances for EB-2 India and China

The U.S. Department of State Visa Bulletin Shows That The Second Employment-Based Category (EB-2) Has Advanced for India and China: Why Is This Important?

The U.S. Department of State is responsible for keeping track of the supply and demand of permanent residence visas according to the quotas set up on the immigration laws. The laws provide how many total green cards are available each year (400,000), the portion allotted to employment-based cases (140,000), and the division of those visas between the five levels of employment based immigration. Also, the law prohibits any individual country from using up more than 7% of the worldwide quota for each individual visa category. This is referred to as the “per-country limitation” and is the reason that India and China are chronically backlogged in the EB-2 (Masters degree level positions) category.

The USDOS announces visa availability through its monthly Visa Bulletin. (The Visa Bulletin may be accessed through links to our website, http://www.immigrationpage.com)

The Visa Bulletin states the “cut-off date” for each category. The cut-off date is the latest date for which a visa is available in a particular category. For the last three years, the cut-off dates for the EB-2 category for India and China have been chronically backlogged to mid-2007. This means that persons who filed their cases in this category, after 2007, have had to wait in limbo, while the cut-off date stalled.

In the past two-three months, the EB-2 category has begun to advance for India and China. The USDOS has indicated that the advance in cut-off dates is the result of decreased demand for visas. This could be due to several factors, including lower usage of EB-1 numbers (which spill down to EB-2), a slower economy, and clearing out of the EB-2 2007 cases.

Now, the February 2012 Visa Bulletin shows that the cut-off date for India and China in the EB-2 category has advanced to January 1, 2010. This means that anyone whose priority date (date of filing of the labor certification or visa petition) is January 1, 2010 or earlier, can now file an application for adjustment of status, if they are in the United States, or they may process their immigration visa at a U.S. Consulate abroad, if they are outside of the country.

Bottom Line: If an EB-2 immigrant from India or China is now eligible to file their adjustment case, due to the advancement of the cut-off dates, then it is extremely important that they do so in the month of February 2012. The USDOS Visa Office is never certain how long priority dates will remain available. The dates can advance, stall or retrogress according to supply and demand of visas in the individual categories. If an eligible immigrant misses their chance to file adjustment now, they may have to wait years before the opportunity will arise again.

For questions on these subjects and for your immigration needs, call Attorney Barry Walker at 662-841-0629. With over 20 years of service, we are the oldest full-service immigration law firm in Mississippi and we serve clients in all parts of the United States and around the world.

Senate Bill S.1979: Permanent Extension of Conrad 30 Program

Senator Kent Conrad has recently introduced Senate Bill S.1979. This bill, if enacted in its current form, would permanently extend the Conrad 30 program. The Conrad 30 program is the law which gives standing to all 50 states and the U.S. territories to recommend J-1 waivers for foreign physicians who are subject to the 2 year foreign residence requirements. J-1 waivers are given to physicians who agree to work in underserved areas of the United States for 3 years.This is the principal program by which many underserved areas in the United States are provided highly skilled, U.S. trained physicians. Traditionally, the Conrad 30 program has been extended periodically every 2-3 years. As proposed by Senator Conrad, S. 1979 would make the program permanent, it would increase the incentives for H-1B physicians to serve underserved areas, it would actually open up the waiver program to H-1B physicians and it would provide protection to foreign physicians from potential employer abuse.
We hope that the Senate will act positively on this bill. The United States will experience an increase in the demand for quality physicians as our population grows older. A permanent Conrad 30 program will help meet those chronic needs.