[Editor's Note: Today's guest post is an introduction to the green card process for foreign-born doctors and the importance of contract review in securing permanent residence. I think both employees and employers will find the information useful. Much of it was new to me. This guest post was submitted by Physicians Thrive, a company offering financial planning from “contract to retirement”. We have no financial relationship.]
Physician contract review is a process designed to clarify, evaluate, and, if necessary, improve the terms of an employment offer. A physician’s contract contains all the details of their compensation, benefits, work expectations, non-compete restrictions and more. For foreign-born physicians, there is often even more at stake in an employment contract.
Many immigrant physicians rely on a sponsoring employer to secure a labor certification and subsequent permanent resident status in the United States. In these instances, the employment contract should clearly define the employer’s responsibility to obtain a labor certification and employment-based visa on behalf of the doctor. By ensuring that the exact terms of employer-sponsorship are guaranteed within the contract, a professional contract review can prevent many unforeseen problems with the visa and green card process.
What are the Most Common Employment-Based Visas for Doctors?
While there are multiple pathways for foreign-born physicians to obtain green cards, one of the most popular routes to achieving permanent residency is through employer sponsorship. Physicians seeking employment-based visas typically fall into one of three categories:
Applicants must demonstrate that they are a “person of extraordinary ability” in their field of expertise. This is available only to the top percentile of international physicians who can prove they have received awards, high salaries, or honors in recognition of their work in the field. EB-1 applicants do not need an employee sponsor or job offer to apply for permanent residence.
Applicants include individuals with advanced degrees with exceptional skills in their field of expertise. It also includes individuals who can prove their work will serve the national interest of the United States. In the latter case, applicants can obtain a National Interest Waiver (NIW) that exempts them from labor certification requirements. In all other cases, EB-2 applicants must have a job offer and sponsoring employer to apply for permanent residence.
EB-3 Visavisas are designated for all other individuals seeking employment-based visas, including those with baccalaureate degrees, skilled workers, and unskilled workers. EB-3 applicants must be sponsored by an employer without exception.
The most common category of visa for physicians is EB-2, as all physicians have obtained an advanced degree beyond a bachelor's degree. The EB-1 visa is typically not a viable option for new physicians, because it is virtually impossible to provide evidence recognizing “extraordinary professional ability” at the very beginning of one’s career. As a result, unless physicians are eligible for EB-1 or a National Interest Waiver under EB-2, they are required to have a job offer and a sponsoring employer to apply for permanent residency status on their behalf.
What is the Process of Employer-Sponsored Permanent Residence?
Step 1: PERM Certification
To begin the labor certification-based green card process, a sponsoring employer must apply for a PERM labor certification on behalf of the physician. This application must demonstrate to the Department of Labor that there are no American physicians available and qualified to fill the position.
When applying for a PERM certification, the employer will have to prove that sufficient measures were taken to advertise the position and recruit American candidates for the job in question. The exact procedures of this process vary by state. In most cases, the employer must show that they advertised the position locally, nationally, and internally for a specified period of time. These advertisements must include salary information and required qualifications that are concurrent with industry standards. Once an employer has fulfilled these steps and demonstrated that there were no qualified American applicants, the employer can file the PERM application.
Step 2: Petitioning for a Visa
Once the PERM certification has been approved, the employer will then petition the Immigration and Naturalization Services (INS) to classify the physician for permanent residence under the relevant visa category.
In this process, your employer will prove they can financially provide for the physician’s salary and that their employment is full-time and indefinite. The employer will also provide documentation evidencing the physician’s prior education and experience.
Step 3: Permanent Residence Application
At the same time or after the visa petition is submitted, the physician and their family can apply for permanent residence status at a U.S. Citizenship and Immigration Services office. For physicians who are already living in the United States, this is referred to as an I-485 application “for adjustment of status.” There is a different “immigrant visa” application for physicians who are residing in their home country.
While this sounds simple enough, there is often a substantial waiting period for permanent residence applicants because of a visa backlog. There are only a certain number of visas available annually within each category (i.e. EB-1, EB-2, EB-3), and the number of applicants far exceeds the available visas for each year. Because of this backlog, it can take years and years before a permanent residence application is processed and approved.
Where Does Contract Review Come In?
Reading through these steps, you’ll notice that the majority of the permanent residency process is the responsibility of the employer. For this reason, if a foreign-born physician needs an employer to sponsor their permanent residency, this agreement needs to be clear, specific, and binding within the employment contract.
A professional contract review will ensure that your employment offer includes all relevant details of employer-sponsorship for a PERM certification and subsequent visa petition. The employer must bear the responsibility and the cost of filing these applications on behalf of the doctor. In many cases, an employer may overlook or be unaware of the appropriate contract language to provide for green-card seeking physicians. However, any contractual issue, omission, or ambiguity relating to employer-sponsorship can prove disastrous for a physician’s permanent resident status.
During a contract review, an attorney specializing in physician employment contracts will review each term of an employment offer. The contract reviewing attorney can either work with the physician’s personal immigration attorney or provide an immigration attorney if necessary to review the clarity and quality of the sponsorship terms. If the contract review identifies any potential issues or red flags, the contract attorney will offer suggested revisions or even negotiate directly with your prospective employer to improve or modify the employment offer.
To prevent unexpected issues in the green card process, professional contract review is of the utmost importance for foreign-born doctors.
Are you a foreign-born physician that has been through the green card process? How did professional contract review aid you in the process of securing permanent residence? Share your experience below!