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U.S. IMMIGRATION FOR CANADIAN PHYSICIANS

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By Carl Shusterman*

For a number of reasons, Canadian citizens are in a favored position when it comes to working in the United States.

First, Canadians are exempt from the general requirement that a person who is not a U.S. citizen or permanent resident requires a visa to work in the U.S.

Generally, a Canadian whose prospective U.S. employer has obtained the approval of a petition filed with the U.S. Citizenship and Immigration Services (USCIS) may show the Notice of Approval at the border or at an airport in Canada, and be allowed to enter the U.S. to work for the employer.

Secondly, the North American Free Trade Agreement (NAFTA) permits persons who are citizens of Canada or Mexico to work for a sponsoring employer in the U.S. in certain professional occupations without even the necessity of submitting a petition to the USCIS. Canadians can simply show the required paperwork at the border or at an airport and be approved on the spot to work in the U.S. in TradeNAFTA (“TN”) status.

One would think that Canadian physicians would have no trouble working in the U.S. This, however, is not the case.

Is licensing the issue? Not really. Although it may take a few months for certain states to issue M.D. licenses to Canadian physicians, the essential fact is that well over 40 states do so based on reciprocity. Generally, if a Canadian physician has a provincial license, he can obtain a U.S. license in the state where he intends to work.

Under U.S. immigration laws, “foreign medical graduates” can not practice medicine in the U.S. without first completing a medical residency in the United States, and before doing so, they need to pass the U.S. Medical Licensing Examination (USMLE), Steps I and II.

However, graduates of Canadian medical schools are not considered “foreign medical graduates” and their residency training in Canada is considered equivalent to residency training in the U.S.

So, it should be simple for Canadian physicians to accept offers of employment to work in the U.S, correct?

Not exactly. To explain why not, a little historical background is required.

Temporary Employment

Prior to 1991, U.S. immigration laws barred both foreign medical graduates and Canadian physicians alike from obtaining H-1 (now “H-1B”) professional status to practice medicine in the U.S.

Section 303(a)(5) of the Miscellaneous and Technical Immigration Amendments of 1991, PL 102-282, provides that physicians may be considered a “specialty occupation” for the purposes of obtaining temporary H-1B working status in the U.S. under either of the following conditions:

1) A physician may qualify for H-1B status if s/he is coming to the U.S. pursuant to an invitation from a public or nonprofit private educational or research institution or agency to teach and/or conduct research. In such cases, the physician is permitted to engage in incidental patient care.

2) In the case of a physician wishing to practice medicine in the U.S. or to pursue graduate medical training, in order to be sponsored for H-1B status, he is required to have passed parts 1 and 2 of the Federation Licensing Examination (FLEX) or an exam designated by the Secretary of Health and Human Services (HHS) as equivalent to the FLEX.

At that time, it was expected by many observers that the HHS Secretary would design the Canadian medical examination, the Licentiate Medical Certificate of Canada (LMCC), to be equivalent to the FLEX. Since most states granted licenses to Canadian physicians who had passed the LMCC, this seemed reasonable.

However, in a Federal Register announcement dated September 16, 1992, HHS Secretary Louis Sullivan announced that only the following two examinations were to be considered equivalent to the FLEX: (1) the National Board of Medical Examiners (NBME), parts I, II and III; and (2) the United States Medical Licensing Examination (USMLE), steps I, II and III.

Secretary Sullivan stated that “as a requirement for obtaining an H-1B visa to practice medicine in the United States, foreign physicians must demonstrate that they have the expertise to practice quality medicine anywhere in the country. By deciding that the USMLE and the NBME certifying exams are equal to the FLEX, a policy is established that is fair to international medical graduates from all parts of the world. At the same time, it ensures quality health care for the American people.”

What Secretary Sullivan’s statement failed to discuss was the fact that Canada was the only country in the world for which medical school graduates could practice in most U.S. states without passing a U.S. examination since Canada’s medical schools were certified by the U.S. Department of Education.

Nearly 20 years after Secretary Sullivan’s announcement, the HHS policy has remained the same. This presents a significant obstacle to Canadian physicians who wish to practice medicine in the U.S. and to the U.S. employers who seek to hire these practitioners.

The bottom line is that if the Canadian physician has passed USMLE, steps I, II and III, and has an offer of employment in the U.S., it is a simple procedure to obtain H-1B status to practice medicine in the U.S. However, most Canadian medical graduates take the LMCC although a small minority takes a U.S. examination. Few of these physicians relish the prospect of having to interrupt their careers in order to take and pass the USMLE.

Is temporary TradeNAFTA (“TN”) work status a viable alternative to H-1B status for Canadian physicians? Unfortunately, the answer is no. TN physicians may enter the U.S. to teach or do research only, not to practice medicine.

Permanent Residence

Interestingly, although Canadian physicians are required to pass the USMLE (or the FLEX or the NBME, neither of which is offered anymore) before they may practice medicine in the U.S. in temporary H-1B status, there is no such requirement for a Canadian physician who applies for permanent residence in the U.S.

To become a permanent resident of the U.S. through employment (as opposed to being sponsored by a relative or through an investment), a Canadian physician has two primary options: (1) PERM and (2) National Interest Waiver.

To immigrate to the U.S. through PERM, the prospective U.S. employer must advertise the job opening, offer the prevailing wage and actively seek to hire a U.S. physician. If no qualified U.S. physicians seek to fill the opening, the U.S. Department of Labor will certify the PERM application. At this point, the employer must submit an immigrant petition on behalf of the physician to the USCIS. Once the petition is approved, the physician and his family are permitted to apply for permanent residence. Assuming that the physician is residing outside the U.S., he will probably have his interview at the U.S. Consulate in Montreal and be granted an immigrant visa to enter the U.S.

The problem is that this procedure can easily take between 18 and 24 months. If the physician is working for the employer in the U.S., this is not a problem. However, if the physician is employed in Canada during this time, many U.S. employers are reluctant to undergo this lengthy process.

The second alternative is for the Canadian physician to obtain an offer of employment at a Veteran’s Administration facility or in a medically-underserved area and to apply for a National Interest Waiver (NIW) and for permanent residence simultaneously.

However, there are a number of problems with this approach.

In order to apply for an NIW and permanent residence at the same time, the physician must be residing in the U.S. in a temporary immigration status. The physician could be teaching or doing research in TN status, running a business in E-1 (Treaty Trader) or E-2 (Treaty Investor) status or in a number of other categories. However, this is more the exemption than the rule. Most Canadian physicians are practicing medicine in Canada.

Hence, the better option, until and unless, Congress or the HHS changes the requirement that the physician pass the USMLE, is for a U.S. employer to go through the PERM process and sponsor the Canadian physician for permanent residence in the U.S.

* Carl Shusterman has been practicing immigration law for over 30 years, first as an INS Trial Attorney (1976-82) and then in private practice. His six-attorney law firm has immigrated hundreds of Canadian physicians to the U.S. His son is a Canadian citizen who practices medicine in Southern California. For those wishing more information on this subject, Mr. Shusterman recommends reading “U.S. Immigration for Physicians” at http://shusterman.com/physiciansusimmigration.html

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