Foreign Medical Graduates or FMGs may use the H-1B category if:

(1) they are undertaking teaching or research; or

(2) they are performing direct patient care (either as interns or residents as part of graduate medical education, or in a private medical practice or private or public health care institution), provided several conditions are met.

Requirements for FMGs to perform direct patient care under the H-1B visa:

(1) The alien doctor must have passed the Federation Licensing Examination (FLEX) (parts I and II). Equivalent examinations designated by the Secretary of Health and Human Services include the National Board of Medical Examiners certifying examinations (parts I, II, and III) and the United States Medical Licensing Examination (steps 1, 2, and 3);

(2) The doctor is competent in oral or written English, as demonstrated by passage of the English language proficiency test given by the ECFMG (Educational Commission for Foreign Medical Graduates), which currently sponsors foreign doctors for graduate medical education in the J-1 category;

(3) The doctor has a full and unrestricted license to practice medicine in a foreign state or he or she has graduated from a medical school in a foreign state; and

(4) He or she has a license or other authorization required by the state of intended employment to practice medicine (if the state requires such a license or authorization).

For alien graduates of U.S. medical schools, items 1, 2, and 3 need not be met. Those doctors need only show that they are graduates of U.S. medical schools and that they have a state license. Similarly, Item 1 and 2 are inapplicable to alien physicians who are of national or international renown in the field of medicine and who have graduated from a medical school in a foreign state. All other general requirements of the H-1B category are applicable to FMGs, alien doctors who are graduates from U.S. medical schools, and alien physicians of national or international renown seeking H-1B status. As a result, H-1B petitions for all alien doctors are subject to the labor condition application process as well as the annual cap.

H-1B Procedure

FMGs seeking H-1B status must comply with identical procedures applicable to other professionals seeking H-1B classification. Their employer must file a petition for H-1B status with the INS, and the petition must be supported by a labor condition application (LCA).

Furthermore, once the petition is approved, the FMG must obtain a visa from a U.S. consulate prior to admission to the United States.

Alien Physicians of Extraordinary Ability and O-1 Visa

Alien physicians of extraordinary ability also have the option of using the O-1 nonimmigrant category. Such physicians must have sustained national or international acclaim, with extensive documentation of their achievements in the medical field. With regard to graduates of foreign medical schools who meet these standards, seeking entry in the O-1 category may be the better alternative than the H-1B category given the simpler procedures involved in obtaining O-1 status.

Canadian and Mexican Physicians

Canadian and Mexican physicians may also be eligible for TN status under the North American Free Trade Agreement (NAFTA). The main disadvantage in using this category, however, is that the TN physician may engage only in teaching or research and cannot engage in direct patient care; this rule applies as well to Canadian and Mexican nationals who are graduates of U.S. medical schools.

Preparation of Supporting Documentation for H-1B

The H-1B petition for an FMG must be submitted to the INS with the following:

(1) A company letter stating the specialty occupation of the beneficiary and containing a full description of the nature of the duties which the beneficiary will be performing, the anticipated length of stay and the arrangements for remuneration.

(2) A copy of the LCA certified by the DOL .

(3) Form I-129W.

(4) Evidence that the FMG passed the Parts I and II of the Federal Licensing Examination (FLEX) or an equivalent examination (Steps 1, 2, and 3 of the U.S. Medical Licensing Examination (USMLE) or Parts I, II, and III of the National Board of Medical Examiners certifying examinations (NBME).

(5) Evidence that the alien has competency in oral and written English.

(6) Evidence that the resident/physician position to be filled by the FMG is a specialty occupation.

(7) Evidence that the FMG has a license or authorization required by the state of intended employment, if the state requires such license or authorization.

(8) Evidence that the physician has a full and unrestricted licensure to practice medicine in a foreign state or has graduated from a medical school in the United states or in a foreign state.

(9) The employment contract (because a written contract is not required, a summary of an oral understanding can be substituted).

(10) Evidence of the alien’s status during past six years if within U.S. during this time.

(11) Filing fee.

Note regarding the supporting documentation:

The employer must describe the job duties for the position in the company support letter. In addition, the employer should also outline the alien’s prior education, training or experience to show that the alien possesses the credentials required by the H-1B category. Further, the terms of employment, including the salary to be paid to the alien, should be included in the letter. A summary of the contract should be included in the company letter. This summary should include a statement of the temporariness of the alien’s employment and the employer’s intention to fully comply with INS regulations including complying with the terms of the LCA and paying the alien’s return transportation if terminated before the end of the period of authorized employment.

*Note that FMGs engaged in "specialty occupations" not involving patient care or teaching or research may also use the H-1B category, without the restrictions imposed for the two uses described above. This use of the category might arise for FMGs in private industry, such as a medical director at a pharmaceutical company or a researcher with a private for-profit employer.

As you can see, the process is complex and requires detailed preparation of the necessary filings. For assistance with your H-1B visa, please feel free to contact your immigration lawyers at 1-952-746-2153