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Immigration Bill to Alleviate Doctor Shortage

Reports show that there is a serious shortage of doctors in America today. While it may not be obvious in big cities, the lack of physicians has become strongly felt in poor and rural areas. By year 2020, the doctor shortage is expected to reach 200,000 because of the aging baby boom generation.

A bipartisan bill was recently introduced in the Senate to make it easier for foreign doctors to obtain temporary visas and permanent residence in the U.S. and thereby address the shortage.

The bill, also known as the “Conrad State 30 Improvement Act” (S.1979), seeks to make permanent a program allowing states to recommend J-1 waivers for physicians who work in medically underserved communities. Currently, the program needs to be renewed every 2 or 3 years. The number of doctors that can be sponsored by each state annually would also be increased from the current 30.

It would also allow doctors on H-1B status to restart the 6-year maximum period if they agree to work in underserved areas. The doctors would also find it easier to change employers.

Additionally, doctors who work in underserved areas would be able to immigrate under the EB-1 category, instead of the EB-2 category. This would greatly benefit physicians from China and India who would otherwise face lengthy visa backlogs under EB-2.

The doctor deficit is in part due to the economic recession but also in some part a result of the immigration restrictions on foreign medical graduates.

The immigration of foreign doctors is a complex matter governed by different sets of rules. Foreign doctors usually come to the U.S. either on an H-1B visa, which allows temporary employment, or J-1 visa, which permits them to undergo graduate medical education or training.

Most of the time, hospitals and medical schools offer only the J-1 option because of the lower level of responsibility required of them. Because H-1B visas are subject to annual limits, when the cap is reached the J-1 is sometimes the only option.

Upon the expiration of their J-1 visa, doctors must return to their home country for two years before they can apply for permanent residence. They may apply for a J-1 visa waiver to be exempt from this home residence requirement. One of the ways to get a waiver is through the state or the Conrad State 30 program, which is named after Sen. Kent Conrad (D-North Dakota) who sponsored the bill back in 1994 and which is the subject of the S.1979.

Many doctors, however, are unwilling to go through the waiver process and instead choose to go back to their home countries or elsewhere to work. Even doctors on H-1B status who lack options for permanent residence sometimes just give up upon reaching the 6-year maximum H-1B period.

Although the specific requirements vary by state, the Conrad State 30 program allowed states to sponsor a certain number of foreign-born, U.S.-trained physicians per year for the J waiver, as long as they agreed to practice in underserved communities for at least 3 years. It was seen as a win-win situation: the doctor was able to remain in the U.S. and the community had a doctor.

The program has allowed 9,000 doctors to work in rural and underserved communities. However, the number of foreign doctors participating in the program has gone down over the years, further limiting the access to healthcare of the people who perhaps need it the most.

False Biographic Information Has Serious Consequences

One of the forms that must be submitted in certain types of immigration petitions or applications is Form G-325 which asks for the applicant’s biographic information. It is a relatively simple and straightforward form, but by no means is it unimportant.

The USCIS compares the information in the G-325 to the results of its background checks. Inaccuracies could lead to complications in the application, possibly even a denial thereof. If the applicant willfully makes a material misrepresentation in the form, it could result in his/her inadmissibility.

The G-325 (and a similar form, the G-325A) asks for the applicant’s biographic information (including other names used), family history, marital history, employment history, and residence history (for the last 5 years and last address abroad).

The G-325A form is required in an I-130 petition for a spouse, I-129F petition for an alien fiancé, and in an I-485 application for adjustment of status if the applicant is between 14 and 79 years of age.

The applicant must remember to always tell the truth when filling out immigration forms. He must make sure that the information provided is correct by comparing it with those in his documents.

To the extent possible, all information asked for must be provided. If the information sought is not applicable, such as if the alien does not have an alien number (A#) or a social security number yet, the applicant must put an “N/A” on the space provided.

An applicant might fear that giving information on a parent or spouse might expose their unlawful status. However, he must be reminded that giving false information could result not only in the denial of the immigrant benefit but also in a bar to his admissibility.

The truth is that there are many things that the USCIS can find out from a G-325 when checked with other information at their disposal. For instance, an applicant’s residence history could be inconsistent with his other immigration papers and disclose prior unlawful status or unlawful presence.

Just as likely, the addresses listed on the G-325 could be compared with the applicant’s old driver’s licenses and criminal records, and this could reveal inconsistencies by the applicant and perhaps even lead the USCIS to believe that the applicant committed fraud or made a material misrepresentation.

An applicant who has worked without authorization might be tempted to omit an employer from the G-325, but the USCIS can find out from its records if the applicant has engaged in unauthorized employment or committed status violations.

The applicant must also be careful in filling in the dates of employment because the USCIS could very easily compare it with information from the Department of Labor, especially in employment-based applications.

As with all other immigration forms, it is important to always tell the truth in the G-325. It may look plain and it can be quickly filled out, but it is also a minefield of potential problems and complications.

When is a Crewman Allowed to Adjust Status?

There are many stories of ship crew members who “jump ship” while their vessel is in the U.S. Sometimes they do it on the advice of well-meaning friends and relatives, at times it is premeditated, but almost always they do it in the hope of having a better life in this country.

Unfortunately, they also later realize that they are barred from getting a green card.

Alien crewmen on a ship or aircraft are not eligible to adjust status. This is true even if they are married to a U.S. citizen. They also cannot extend their stay or change their status. Furthermore, they are ineligible for the relief of cancellation of removal, even after ten years of residence in the U.S. and even though they can show that their deportation would result in exceptional and extremely unusual hardship to their qualifying relatives.

The “crewman bar” to adjustment of status is intended to prevent people from abusing the seaman’s route to gain easy access to the U.S. to reside here permanently.

An exception to the bar to adjustment of status is available under Sec. 245(i) of the Immigration and Nationality Act (INA).There is no bar to adjustment of status if the crewman was the beneficiary of a petition filed on or before April 30, 2001, and can prove that he was in the U.S. on December 21, 2000 if the petition was filed after January 14, 1998 but on or before April 30, 2001.

An often overlooked exception, although it is strictly speaking not an exception, is if the alien is not a “crewman” to begin with.

Under the INA, an alien crewman is a person serving in a capacity required for the normal operation and service on board vessel or aircraft, who intends to land temporarily and solely in pursuit of his calling as a crewman.

The proper visa classification for crewmen is the D visa. However, the C-1 visa is also given to crewmen who will be in immediate and continuous transit through the U.S. to join a ship or aircraft in the U.S. Consular officials often issue a dual transit/crewmember visa called “C-1/D”.

Confusion sometimes arises because, since the C-1 visa is generally for those who are passing through the U.S. to another country, not all transit visa holders are crewmembers but they are issued a C-1/D visa.

The confusion continues upon inspection for admission or parole in the U.S., where the individual may be issued an I-94 with a C-1 or D stamp, or an I-95 (crewman’s landing permit).

In other words, not everyone with a C-1 or a C-1/D visa is a crewman and ineligible to adjust status. If the person does not meet the statutory definition of a crewman, he/she should not be considered ineligible for adjustment of status. Under the law, it is one’s occupation and purpose of entry that makes him a crewman and not the manner of his arrival.

Given the serious immigration implications of being categorized as a crewman, it is important to look beyond what may be stamped on the face of one’s immigration papers and analyze many factors, including his occupational history, purpose in coming to the United States, circumstances surrounding his inspection upon admission to the U.S., and actions after his entry.

Filing EB-2 Now Before Visa Caps Change

The Fairness for High-Skilled Immigrants Act overwhelmingly passed by the House of Representatives on November 29 has been blocked at the Senate by Sen. Chuck Grassley (R-Iowa), who has put a hold on the bill for reasons he has not so far clearly explained.

The bill seeks to alter per-country visa caps and shorten the waiting time for employment-based immigrant visas, particularly in the third-preference (EB-3) and second-preference (EB-2) categories for Indian and Chinese nationals,

But it does so at the expense of other countries such as the Philippines. In the event that the bill gets passed by the Senate and signed by Pres. Obama, it would result in longer waiting times for nationals of other countries.

One way to avoid the long wait is by immediately filing for the EB-2 category, where there is a yearly allocation of 40,000 visas.

Right now, for nationals of countries other than India and China, visa numbers are immediately available under the EB-2 category, while there is at least a six-year wait for those in the EB-3 category. If the bill becomes law, there would eventually be a visa backlog under EB-2 while that under EB-3 would worsen.

EB-2 has two subcategories: foreign nationals of “exceptional ability in the sciences, arts or business, and advanced degree professionals.

The advanced degree requirement is met if the beneficiary is a member of the professions holding an advanced degree or its equivalent, and the position requires at a minimum an advanced degree. Professionals that may apply for EB-2 include nurses, physical therapists, engineers, teachers and accountants.

The beneficiary must have a U.S. master’s degree or its foreign equivalent degree. If the beneficiary does not have a master’s degree, EB-2 is still appropriate if the beneficiary has a bachelor’s degree plus five years of “progressive experience” in the profession. In the latter case, the USCIS deems the combination as equivalent to a master’s degree.

For purposes of the equivalency, the employment experience must be one that “progresses, moves forward, and advances toward increasingly complex and responsible duties demonstrating advancing levels of responsibility and knowledge in the specialty.”

Exceptional ability workers, on the other hand, must show a degree of expertise that is “significantly above the ordinary”. This can be established through any three of the following: degree relating to an area of exceptional ability; employment letters showing at least 10 years of experience; having a professional license or certification; membership in a professional association; evidence that the alien commanded a high salary which demonstrates exceptional ability; and recognition of achievements and significant contribution to the industry or field by peers, government entities, and professional or business organizations.

A labor certification is required before applying for an EB-2 visa and this adds anywhere from several months to more than one year to the immigrant process.

Labor certification is not required, however, if the position is among those listed in Schedule A, such as nurses and physical therapists, as well as some exceptional ability aliens, including college and university teachers.

Another way to be exempt from the labor certification requirement is through the “national interest waiver”. The alien requesting the waiver must show that the employment is in an area of substantial intrinsic merit, the benefit of his employment is national in scope, and the national benefit outweighs the national interest in requiring labor certification.

Since the above-mentioned bill will likely become law, workers from countries other than India and China should consider all available options to try to avoid or mitigate the unfortunate effect of the law on them.

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