Most foreign-born physicians have to conduct their medical training in the United States in order to be licensed and practice in the U.S. In the vast majority of cases this is done through the J-1 visa. The J-1 visa requires that the physician return to their home country for 2 years following their training before the physician can apply for an H-1B visa or permanent residence in the US. The majority of physicians in J-1 status apply for special physician waivers to this 2-year home residence requirement which require the physician to serve for 3 years in a medically underserved area in the United States.
The PERM-Based Path to Permanent Residence
The most common path for foreign born physicians to gain permanent residence in the United States is the PERM labor certification process. This is the generic process that is followed by most other professionals as well. It consists of 3 steps: 1. The PERM Labor certification process; 2. The I-140 immigrant visa petition; and 3. The adjustment of status application. The PERM process has 3 sub-steps: a. prevailing wage determination which is currently taking 6-11 months; b. recruitment which usually takes 2 months; and, c. the PERM application which is currently taking 6-12 months. The PERM and the I-140 can be filed during the 3-year waiver commitment described above. However, the third part of the process, which is the actual application for permanent residence cannot be filed until the 3-year waiver commitment ends. This is assuming that the priority date which is established by the filing of the PERM is current. For more information regarding priority dates being current and backlogs, take a look at this other blog. A salient point to remember is that from the very beginning of the process it can take 1 year to establish the priority date since the PERM application takes quite a bit of time and effort to file.
The Physician National Interest Waiver Path to Permanent Residence
For physicians who are working in a medically underserved area (MUA) or a Health Professional Shortage Area (HPSA), another path to permanent residence becomes available. This is the Physician National Interest Waiver (PNIW). This is a far faster and simpler process, however it requires commitment to underserved areas for 5 years. One of the big benefits of the PNIW is that it can be self-petitioned whereas the PERM process can only be done by an employer. Another big benefit is that it also allows a physician and family members (spouse and children) to apply for adjustment of status before the 3-year waiver commitment is completed if their priority date is otherwise current. This is a big benefit in that all who apply for adjustment of status can obtain work authorization (EAD) and advance parole which is a document that be used to leave and reenter the US. While we always recommend our physician clients to hold on to H-1B status for as long as they can, the Advance Parole can be a good safety net to be able to return to the US if there are delays in visa issuance at consulates.
Which One to Pick?
Physicians don’t have to choose one or the other. They can do both. In fact, depending on the circumstances of each client, we routinely recommend doing both. Here are some of the main reasons for doing so.
First, it provides an independent basis for adjustment of status. While many physicians will eventually obtain their permanent residence faster through the PERM process (since it takes 3-4 years to approval, not 5), in the cases of physicians born in India or China, there is a substantial backlog which means that permanent residence is a ways off. Having an independent, self-petitioned ground to adjust status can then become a benefit so one can advance in their career even with the same employer without having to redo the PERM.
Second, it establishes an earlier priority date than the PERM. As mentioned above, it takes approximately one year or more to even establish a priority date through the PERM process. With a PNIW that can be done in a matter of a couple of weeks. With the growing backlogs we are experiencing and will likely continue to experience, this could ensure that one does not too long to file for the adjustment of status.
Third, it can provide an EAD for a spouse in H-4 status even without filing an adjustment of status. Through the PERM process, the H-4 EAD could be 1-2 years into the future, greatly hampering the career of a spouse. This is relevant since spouses in J-2 status can be authorized to be employed just by being in J-2 status. H-4 spouses cannot obtain an EAD unless the H-1B spouse has an approved I-140 petition for them (PNIW or otherwise). Therefore, filing a PNIW even when intending to obtain permanent residence through an employer-filed PERM process, a PNIW can provide many side benefits in a more timely basis.
Fourth, if eligible to file for adjustment of status (i.e. priority date is current), as mentioned above, this filing can provide the physician and their spouse and children with advance parole. This is an important backup to being able to travel internationally. We recommend remaining in H-1B and H-4 status until permanent residence if at all possible, however, without advance parole, many of our clients are afraid to travel internationally due to potential visa issuance delays at consulates. Some of our clients from what the U.S. government has deemed “sensitive countries” (practically speaking just about every predominantly Muslim country), are routinely subjected to what is called “Administration Processing” at consulates. Administrative Processing means a visa is not issued until whatever the issue that exists in the system is resolved, typically a security check that has to be manually run. Administrative Processing delays sometimes take months to resolve and it’s not uncommon for physicians to lose their jobs when they can’t return to work in a reasonable time.
As discussed, there are many reasons why we recommend that our clients pursue both a PERM through their employer and a PNIW. If you are interested in applying for a PNIW petition, please schedule a consultation with one of our experienced attorneys.
