Options for J-1 Clinicians: The O-1 Visa
Options for J-1 Clinicians:
The O-1 Visa
By Suzanne B. Seltzer *
Every foreign physician on a J-1 visa sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) for the purpose of clinical medical training is subject to the two-year home residency requirement imposed by Immigration and Nationality Act (INA) §212(e). At the end of this training, many of these foreign physicians decide that they are not ready to return home; yet, until they do so, they are barred from receiving an H or L visa, or permanent residency.[1] While a waiver of the two-year home residency requirement is a possibility, the processing times for a waiver are such that there is often a gap in the individual’s status to remain lawfully in the United States and to continue working. In addition, the J-1 waivers based on clinical practice in a shortage area are becoming more and more difficult to come by, particularly for subspecialist clinicians. Finally, some physicians do not mind returning to their home countries for two years; they simply want to gain some professional experience in the United States above and beyond their training before returning to their home country. The O-1 acts as an excellent solution to overcome each of these problems.
Both the United States Citizenship & Immigration Service (USCIS) and the Department of State (DOS) have repeatedly recognized that the O-1 visa is available to former J-1 visa holders, notwithstanding their two-year home residency requirement. Consider, for example, the statement from Jacquelyn A. Bednarz, then Chief, Nonimmigrant Branch Adjudications,[2]which specifically recognized that §212(e) does not bar issuance of the O-1 visa. Similar statements have frequently been made by the Department of State. As a result, the O-1 has become an important option for the J-1 physicians who want to continue working in the United States beyond their J-1 training periods.
The underutilization of the O-1 visa appears to be based on a common misconception among practicing attorneys, employers, and even the J-1 physicians themselves that O-1 status, within the medical and scientific community, is only available to well-published researchers. This focus on publications seems misplaced in evaluating a clinician’s eligibility for the O-1.
If the O-1 is available to research-oriented, well-published physicians, where, then, does this leave the expert clinician? Apparently, out in the cold. This is a mistake. Where a cardiac anesthesiologist from Johns Hopkins, or a pain management specialist from Cleveland Clinic, or a pediatric cardiac surgeon from BaylorMedicalCenter inquires about his visa options, the O-1 should absolutely be a consideration. Yet, all too often, they are advised that the O-1 is not a feasible option for them; or they themselves are under the mistaken belief that it is not a feasible option simply because they do not have publications. For these individuals, the question should not be are they eligible, but rather, how can they document their O-1 eligibility.
The purpose of this article is to explore the O-1 as an option for clinical physicians and to provide suggestions in analyzing a client’s eligibility for this category based on a more aggressive, and more complete, review of this category. Specifically, this article will analyze, point by point, each of the evidentiary criteria established by the USCIS to document “extraordinary ability in the field of science” and how they can be made relevant to a clinical physician. It will then explore a number of problems and misconceptions often encountered with these cases. This includes obtaining the often elusive “consultation letter,” determining appropriate petitioners, and detailing the “nature of the event.” Finally, this article concludes that given the recommendations and suggestions detailed here, the O-1 should certainly be pursued more aggressively for clinical doctors, providing specific examples of where this strategy was used successfully. Moreover, while this article focuses on the O-1 for clinical physicians, this same aggressive strategy can be extended to many different fields.
The Evidentiary Criteria
As more physicians in J-1 status are fresh out of their U.S. medical training, a mere review of their resumes frequently provides an incomplete view of their expertise in the field and the factors that may establish them as outstanding in their field of expertise. Therefore, it is important to review and explain the O-1 regulatory criteria with them, and to see how and where their expertise can be categorized within these terms. Moreover, while the regulations suggest that “at least three” of the criteria are required, in truth these criteria are merely pieces of the puzzle used to create a total picture of someone who has reached the top of his field. It is the total picture created through as many of these pieces as possible that will lead to a successful case.
USCIS regulations clearly state that “extraordinary ability in the field of science… means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.”[3] More than anything this is what USCISadjudicators focus on in reviewing petitions. Namely, can this person be placed at the top of his field? To answer this question, the first hurdle is to define the individual’s field, and then to define the individual’s level of expertise within that field. In cases involving clinical physicians, this requires working closely with the individual to determine what makes someone an expert clinician. Is it advanced diagnostic skills? An ability to perform a difficult surgical procedure? Or an advanced expertise with the most sophisticated technology in the field? Only through a detailed investigation of the individual’s field can many of these questions be answered, and thus a successful case flushed out.
While USCIS regulations list evidentiary criteria for an O-1 alien,[4] this list recognizes: “If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.”[5] This is where the advocate needs to become creative. Investigation and exploration into a clinical doctor’s respective field of expertise is essential to identify this “comparable evidence.” For example, within the clinical medical field under consideration, “comparable evidence” may include prestigious fellowships, expertise with advanced technology, or an ability to perform a complex procedure. The key, then, is finding out how physicians within a particular specialty, or subspecialty, are judged and evaluated, and to portray the client accordingly.
Developing evidence relevant to the clinician’s field sometimes requires a novel approach to the criteria set forth in the regulations.[6] The common mistake is a focus on only one of the criteria, namely, publications. Yet, there are several other criteria listed in the regulations that should be given equal weight in determining a clinician’s eligibility for extraordinary ability. Consider, for example, the “leading and critical role” a principal surgeon plays in a difficult procedure, the “significant contribution” of a life-saving intervention or unique diagnosis, or “judging and evaluating the work of others” through clinical audits. These are just a few examples of how the existing criteria can be used in the case. Incorporating that language is particularly important, as, in our experience, USCIS is more comfortable with its criteria, and will more readily approve a petition that is structured in its language.
Therefore, the following is suggested as a means to use USCIS’ established criteria in the context of analyzing O-1 eligibility for a clinician, and to determine if his or her expertise can be depicted as “extraordinary” within the field:
Alien’s Receipt of Nationally or Internationally Recognized Prizes or Awards for Excellence in the Field of Endeavor[7]
The key to this criterion is noting that the standard is nationally or internationally recognized, not nationally or internationally awarded. “Recognized” generally means that people react to it as impressive. This is a credential that is striking as a distinction, and instantly makes one consider the clinician as someone he would trust as an expert in the field. For example, perhaps the clinician did a fellowship at a top-ranked medical institution, either in the United States or abroad. Such fellowships are granted through an extremely competitive process, and are therefore arguably an award. Another consideration is whether this individual was a recipient of a grant to pursue this training, or whether this individual received a grant to attend a national or international conference. These too may be considered honors and awards. What is important for USCIS purposes is to outline the competitive nature of the distinction and how widely regarded this distinction is in the field of endeavor.
Alien’s Membership in Associations in the Field that Require Outstanding Achievements[8]
Most top clinicians are Board Certified in one or more specializations in medicine. Status as a “Diplomate” in one or more of these medical boards not only requires advanced training, it requires passage of a rigorous, multi-tiered examination process with a low success rate. Clearly, board certification can be viewed as a membership in a society that requires “outstanding achievements of their members.”[9] In addition, many J-1s have had substantial training and clinical expertise before coming to the United States, and have advanced certifications from their home countries or other overseas countries. These, too, may be considered memberships that require outstanding achievement.
Moreover, many other professional medical societies require nomination, election and recommendations from members in good standing. This, arguably, establishes that the “outstanding achievements” required for membership were judged as such by “national or international experts in their disciplines or fields.”[10] One way to determine if a professional association or society is one that requires “outstanding achievements of their members” is to gather information on the specific membership requirements. Reviewing the bylaws, constitution or criteria outlined for membership, often readily available on the Internet, provides a great deal of insight into the relative ranking and difficulty of obtaining membership. Often, these sources will provide important information into the “outstanding achievements” requiredfor membership in the association, which a clinician may not have even realized she had achieved.
Published Material in Professional or Major Trade Publications or Major Media About the Alien[11]
Clearly, if a surgeon performs a major innovative procedure, such as successfully implanting the first artificial heart in a human, then the mass media press coverage speaks for itself. However, the focus of this article is on the less obvious types of documentary evidence. For example, many clinicians who are Board Certified have their biographies included in Who’s Who in Medicine. This is certainly a “major trade publication… relating to the alien’s work in the field.”[12] Other trade publications that may beused include directories of Board Certified physicians or hospital newsletters describing a physician’s achievements or contributions. Again, the key is to explore anywhere the clinician’s name appears to see if it can be used to create the total picture that this individual “has risen to the very top of the field of endeavor.”
Alien’s Participation as a Judge of the Work of Others[13]
Clinical medicine is a hierarchical profession, even at its earliest levels. Nearly everything a clinical doctor does involves judging and evaluating “the work of others in the same or in an allied field of specialization.”[14] For example, the performance of a medical procedure usually includes not only the physician, but also nurses and possibly technical assistants. The physician must judge and evaluate the work of all those on her team, and is ultimately responsible for the success of the procedure. This role becomes all the more significant the more complicated and complex the procedure.
Moreover, the J-1 physicians are not only part of a training program, they themselves are usually required to train others within their program. Senior fellows and residents are required to judge and evaluate the work of junior fellows, residents, medical students and nurses. Often they teach difficult procedures to others and are responsible for written evaluations that determine if their juniors are promoted to the next level. This responsibility is significant, and arguably establishes that both individually and as part of a panel, the alien has participated as a judge of the work of others.
Alien’s Original Significant, Scholarly Contributions of Major Significance in the Field[15]
In determining clinicians’ significant contributions, a first step is understanding what they actually do, the degree of skill required to do it, and the percentage of other clinical procedures, step-by-step, noting all the places where a slight misstep can have disastrous consequences. This presents compelling evidence of a significant contribution. The “originality” of the contribution is substantiated through a specific case example, for rarely are complicated medical procedures routine; and frequently a physician improvises and improves upon an already established procedure to meet the specific needs of a particular patient.
Another possible example of a significant and original contribution credited to a clinician may be a complex diagnosis missed by a whole host of other specialists. In many instances, these unique diagnoses are published as case reports, so that other clinicians can learn from them. As a result, a single diagnosis can have an impact on the field as a whole.
Of course, clinicians may also have performed research, usually in the course of clinical trials or clinical studies for drug companies. This should not be overlooked. Rather, it should be presented as the use of superior clinical skills to determine where gaps exist in medical know-how and to develop innovative solutions to solve them. The significance and originality of such a contribution is further indicated by the fact that most significant medical research is done by scientists far removed from clinical practice. Therefore, expert clinicians are needed to introduce the practical realities of clinical practice and clinical needs into many clinical trials and even bench studies. The fact that a clinician has expertise in both the practice of medicine and in publishing the boundaries of the field further supports her status as “one of a few at the top.”
Alien’s Authorship of Scholarly Articles in the Field, in Professional Journals, or Other Major Media[16]
If a clinician has published in a journal or presented before a conference, these facts should be included in the case, even if the clinician was not first author. For example, the clinician may have been consulted on an article because of her clinical expertise, and as a direct result of her contribution, the study was a success and therefore she was given credit as an author. Or, as discussed above, there may be a case report that the clinician published for which he received considerable attention.
In addition to these more traditional forms of publication, other forums where a physician published and presents his work or lectures regarding his field of expertise should be considered. Examples that come to mind are “Grand Round” presentations in which a clinician lectures at a major tertiary care center on his field, or a hospital report that impacts the way a patient population is managed. While these may not be publications in “professional journals, or other major media,” could it not be considered “evidence of the display of the alien’s work in the field at… showcases?”[17] By borrowing from the regulations for an immigrant petition as an alien of extraordinary ability[18] and incorporating it into the petition, these types of presentations can add to, and augment, this evidentiary criterion, as well as develop “comparable evidence.”[19] As such, it adds to the total picture of the clinician’s expert status in the field.
Employed in a Critical or Essential Capacity by Organizations with a Distinguished Reputation[20]
This criterion has two major components: (1) the distinction of the institution; and (2) the clinician’s responsibilities within the institution. The first can be documented by the ranking of the medical institution within the particular specialty, procedures for which the institution is particularly known, an evaluation of the staff, and how competitive it is to obtain a position - even a training position - within the institution. The second component requires an analysis of the level or responsibility the clinician had. Indeed, simply leading a complex clinical procedure at a major medical center should be considered as a “leading and critical role for a distinguished institution.” Yet, the definition of a “critical or essential capacity” can also be defined to include a number of factors, including an analysis of the hierarchy and where the clinician fits within it, how many people she supervised, roles on committees, and any administrative responsibilities and teaching, to name just a few.
High Salary[21]
In this time of managed care, even the most superior medical doctors are not making the salaries they once were, and this is particularly true for clinicians working in an academic environment. Yet, there is still an argument to make, and often the Department of Labor’s own salary survey can be of assistance in making a determination of what is considered to be a “high salary.” Moreover, in reviewing this criterion, the focus should not be limited to the present. A thorough evaluation of positions held overseas should also be included, as there is no restriction in this criterion that the O-1 candidate must be making a “high salary” today, only that she “has either commanded a high salary or will command a high salary or other remuneration for services.”[22] Therefore, it is essential to evaluate both past and projected future earnings, with as much documentation as is available.
Sustained National or International Acclaim
As noted at the outset of this article, what the USCIS is ultimately trying to determine is not how many of the evidentiary criteria an O-1 candidate meets, but rather, whether through these criteria “theperson is one of the small percentage who have arisen to the very top of their field of endeavor.”[23] Indeed, even if a colorable argument can be made that a clinician meets everyone of the above-mentioned criteria, it is still possible that the O-1 petition may not be approved. This is because ultimately USCIS is not simply looking to check off a list of criteria, but rather to determine if the clinician has “sustained national or international acclaim” in the field.[24] One of the toughest tasks in preparing a petition on behalf of a clinician is gathering the documentary evidence sufficient to substantiate that claim.