Representing international medical graduates (IMGs) in immigration matters adds a layer of questions, legal issues, and acronyms that relate specifically to the medical field, training and credentialing requirements, as well as regulatory requirements affecting exclusively physicians. Some practitioners shy away from diving into this area of immigration law practice because of these complexities. However, having the right tools at your disposal should demystify it, or at least de-code the acronyms and provide guidance in representing IMGs.
The following frequently asked are the fundamentals to know before advising an IMG, which should form a solid foundation for a more nuanced practice in this field.
Q. What is an IMG?
A. An IMG, or International Medical Graduate, is not necessarily a foreign national. Rather, an IMG is an individual who graduated from medical school located outside the U.S. and Canada. According to the Educational Commission for Foreign Medical Graduates (ECFMG), an IMG is defined as:
… a physician who received his/her basic medical degree or qualification from a medical school located outside the United States and Canada. The location of the medical school, not the citizenship of the physician, determines whether the graduate is an IMG. This means that U.S. citizens who graduated from medical schools outside the United States and Canada* are considered IMGs. Non-U.S. citizens who graduated from medical schools in the United States and Canada* are not considered IMGs.[1]
Conversely, a foreign national who graduated from a medical school located in the U.S. or Canada* would not be considered an IMG, even though he or she may still require sponsorship for immigration benefits.
*By mutual agreement, LCME accreditation of several Canadian medical education programs will end on June 30, 2025. Graduates of these Canadian medical schools after that date will be considered IMGs and will require ECFMG certification.
Q. Aside from USCIS, what other regulatory sources impact IMG immigration matters?
A. One of the most challenging aspects of working with IMGs is that they have dual goals of working in rewarding, stimulating professional positions (after all, they have undergone an extensive period of education and training) while also achieving their desired immigration objectives. This, in turn, requires immigration counsel to keep in mind three separate but interrelated regulatory frameworks that affect the lives and careers of IMGs:
- Quality standards developed by the medical profession;
- State licensing regulatory bodies;
- Immigration adjudication framework that incorporates, to varying extents, the quality control standards established by the states and the profession that ensure a high standard of professional practice by physicians.
In terms of quality standards created by the medical profession to safeguard the welfare of the public by having physicians meet exacting practice standards, there are two basic sources for quality control:
- A special system to ensure that IMGs hold the knowledge and skills to succeed in the U.S. medical system; and
- The more general system established by the medical profession to ensure high professional practice standards.
The Educational Commission of Foreign Medical Graduates (ECFMG) was created by the medical profession to ensure that IMGs meet acceptable professional practice standards to work as a physician in the United States. The ECFMG performs the following functions:
- It devises and administers various examinations intended to judge the professional capabilities of IMGs;
- It issues the ECFMG Certificate to IMGs who show a level of professional knowledge, English language facility, and cultural adoptability to work as a physician in the United States;[2]
- It monitors the progress of an IMG in successfully completing the GME program in a timely manner through the issuance of DS-2019 forms as required to maintain J-1 status.
Beyond ECFMG, the medical profession created other mechanisms to establish and ensure high professional standards. In particular, two schemas carry significant importance to IMGs:
- The Accreditation Council of Graduate Medical Education (ACGME), which accredits GME programs, and whose determinations are used substantially in issuance of a medical license; and
- The certification system of the various American Boards of Medical Specialties (ABMS), which certify the professional competence of both primary and specialty care physicians. In many instances, American Board Certification (or Eligibility) is a critical determining factor for working in the United States.
Somewhat related to the standards created by the medical profession, each state creates standards for the licensing of physicians. Each state requires completion of an ACGME-accredited program in GME, with very limited case-by-case exceptions. There are variations among the states in the number of years of required GME training, levels of experience, and special requirements for IMGs. But the key concept is that the states look to the standards developed by the medical profession to determine the professional practice capabilities of both IMGs and U.S. medical graduates.
Obviously, an IMG needs to possess valid immigration status in order to work in the United States. While the basic construct of employment-based immigration applies fully to IMG immigration, the practitioner needs to ensure that an IMG meets certain stipulated credentialing requirements. In particular, for H-1B cases, an IMG needs to possess the following credentials: 1) MD or a medical license abroad; 2) English language fluency through production of an ECFMG Certificate or graduation from an accredited medical school program (i.e., U.S. or Canadian* programs); 3) passage of all three steps of the U.S. Medical Licensing Examination (USMLE); and 4) a state license or authorization issued by the state to do the duties of the position. Similar special and stipulated credentialing requirements exist in the permanent resident context and the practitioner needs to ensure that the IMG meets fully these credentialing requirements.
*By mutual agreement, LCME accreditation of several Canadian medical education programs will end on June 30, 2025. Graduates of these Canadian medical schools after that date will be considered IMGs and will require ECFMG certification.
Q. What exams are IMGs required to take in order to qualify for: a) H-1B status; b) any other nonimmigrant status; and c) permanent residence? Are there exceptions?
a) H-1B
The H-1B regulations for physicians,[3] establish four basic requirements: a qualified medical education, fluency in English, medical knowledge, and a state license. The first two requirements are met either through ECMFG certification – which requires that the physician take a science and English test – or by graduating from either a U.S. medical school or a Canadian medical school accredited by the Liaison Commission on Medical Education (LCME).
The third requirement – medical knowledge – is established by documenting that the beneficiary passed all three steps of the U.S. Medical Licensing Examination (USMLE). Specifically, the regulation requires that beneficiary have passed the Federation Licensing Examination (FLEX), or an equivalent examination as determined by the Secretary of Health and Human Services. FLEX is no longer given, and in 1992, the Department of Health and Human Services (HHS) established USMLE Steps 1, 2, and 3 as the “equivalent examination.”[4]
Finally, as with any H-1B specialty occupation that requires a license, the IMG must have a license or other authorization required by the state of intended employment to practice medicine. Many states do not require an individual license for those participating in training programs. Instead, they are covered by an institutional permit. Nevertheless, it is important to document the respective state’s licensure requirements in the H-1B petition.
However, it would not be an immigration issue without exceptions: 1) the regulations explicitly excuse graduates of a United States (not Canadian) medical school; and 2) physicians of national or international renown from the USMLE requirement. With regards to physicians of national or international renown, query whether the standard is higher or lower than the O-1, a subject for another day. Finally, H-1B petitions for physicians primarily engaged in teaching and research, engaged in only incidental clinical care, are also not required to contain proof that the beneficiary passed USMLE steps 1, 2, and 3. Again, what constitutes incidental is another question for another day.
b) Other Non-Immigrant Options
ECFMG is authorized by the U.S. Department of State to sponsor J-1 Exchange Visitor physicians enrolled in accredited programs of graduate medical education or training, or advanced research programs (involving primarily observation, consultation, teaching or research). In fact, ECFMG is the sole sponsor of J-1 physicians in clinical training programs. It requires a physician to have obtained ECFMG certification, which includes a credentials review and satisfactory scores on the USMLE Step 1, Step 2 Clinical Knowledge, and Step 2 Clinical Skills.
There are no licensure or examination pre-requisites for other non-immigrant options, the most common of which in the IMG context are the E-3 or the O-1. Of course, all practicing physicians are bound by state licensure requirements and must comply with those requirements.
c) Permanent Residence
While the H-1B petition requires all three steps of USMLE, qualifying for permanent residence requires only the first two. This is because when the USMLE was developed, it was intended to streamline the examination requirement for IMGs. Prior to implementation of the USMLE, IMGs were required to take two separate examinations; one to satisfy the requirements of immigration law and the other to satisfy the requirements of state licensing boards. USMLE was established to replace both these examinations. The federal examination, first the NBME and later the FMGEMS, was replaced by USMLE Steps 1 and 2. The state licensing requirement, FLEX, was replaced by USMLE Steps 1, 2, and 3. State licensure is not required to qualify for immigration.
Q. What is the typical career and related nonimmigrant status trajectory for IMGs?
A. Both the career and the immigration trajectory of an IMG start with gaining the credentials needed to practice medicine in the United States. This journey starts with the need of an IMG to enroll in an ACGME-accredited program in Graduate Medical Education (GME), as this is a baseline requirement to gain state licensure.
Normally, an IMG will enroll in a basic primary care program of training – i.e., Internal Medicine, Family Practice, Pediatrics, or OB/GN.
Thereafter, the IMG may either go into the physician workforce or continue to advanced fellowship training in specialty care medicine. Such programs vary substantially in length of time and can receive recognition from an American Board or be non-accredited, which essentially refers to highly focused or cutting-edge, emerging fields of medicine. There are potential complexities for IMGs for visa status purposes who desire to enter non-accredited programs.
In terms of long-term career development, one of the primary demarcations exists between academic medicine and private practice. The immigration practitioner needs to be aware of the long-term career objectives of the IMG and the various immigration options presented by differing types of medical employers. Specifically, practitioners should take the time and trouble to understand the long-term career objectives of their IMG clients, as in most cases, the IMG has an equal interest in a suitable immigration outcome and a challenging professional future.
Q. What are the pros and cons of J-1 status versus H-1B status for completing Graduate Medical Education (GME)?
A. While the J-1 Exchange Visitor program is generally used for programs in GME, the position of Medical Resident or Clinical Fellow is a “specialty occupation” and qualifies for H-1B Temporary Worker status. Given that the employing institution controls the H-1B sponsorship process, many training programs opt for the J-1 sponsorship option in order to avoid the expense, trouble, and legal exposure inherent in the H-1B process, as well as to emphasize its commitment to international exchange. After all, the ECFMG provides a rather economical and efficient sponsorship alternative to the H-1B Temporary Worker classification.
The general opinion held by the overwhelming number of IMGs is to seek H-1B status for GME purposes so as to avoid the two-year home residence obligation. On closer examination, this may not always serve the IMG’s long-term professional and immigration interests.
If an IMG intends to pursue a primary care course of training and then enter the job market, he or she will generally use up three (sometimes four) years of H-1B status. This would preserve a sufficient period of remaining H-1B eligibility to find a job and undertake the permanent resident process.
But if the IMG intends to pursue a program in specialty care medicine, then there is a real possibility that the IMG will use up the full six-year term of H-1B eligibility so as to forego the possibility of pursing permanent residence based on employment. Or even worse, the IMG may find that he/she does not have a sufficient period of H-1B eligibility to engage in a full course of specialty care training, given that many subspecialties require periods of training well in excess of six years. The ECFMG has declared that, once an IMG starts GME under H-1B status, the ECFMG will not issue a DS-2019 form for J-1 sponsorship purposes. Furthermore, while the J-1 physician program is normally limited to seven years, many IMGs under the “exceptional circumstances” exception are able to get extended period of J-1 sponsorship that will let them complete advanced periods of GME and position themselves quite favorably for J-1 waivers. As such, those physicians who wish to pursue advanced specialty training that may last six years or longer should consider the J-1 as a viable option.
Q. Can a J-2 dependent spouse pursue GME with an EAD?
A. There is no prohibition on J-2 spouses pursuing residency training on an EAD. In fact, many IMG couples make the strategic decision for only one spouse to take the J-1, and for the other to pursue residency in J-2 status. The advantage is that, should the couple decide to remain in the U.S. post-training, only one spouse would require a waiver of the two year home residency requirement of INA 212(e). The disadvantage, however, is that should the J-2 spouse wish to continue training or residency beyond the J-1’s training period, s/he may find it challenging to obtain another NIV status.[5]
Q. What are the special considerations applying to Canadian physicians in pursuing immigration status based on employment?
A. Interestingly, graduates of many Canadian medical schools are not considered IMGs, and therefore do not require ECFMG certification. This is set to change for graduates of certain Canadian medical schools after July 1, 2025. While many Canadian medical graduates are not IMGs, to qualify for an H-1B, they nevertheless must have passed all three steps of the USMLE. As noted above, only the first two requirements of 8 CFR § 214.2(h)(4)(viii) can be met graduating from either a U.S. medical school or a Canadian medical school accredited by the Liaison Commission on Medical Education, and only graduates of U.S. medical schools are explicitly exempt from the USMLE requirement.
Canadian trained physicians entering the U.S. for teaching and research only, may qualify for a TN.
Q. What about physicians working “at” a cap-exempt institution but “for” a cap-subject employer?
A. It is not uncommon for a physician to work “at” a cap exempt institution, while working “for” a cap-subject employer. Consider, for example, that many private practice groups are incorporated as “for profit” entities, but their employees work at a university or university-affiliated non-profit hospital. This is addressed by the regulations at 8 CFR 214.2(h)(8)(iii)(F)(4). The regulation makes clear that it is not merely the act of working “at” the qualifying institution that exempts the petition from the cap. Rather, the petition must also demonstrate that the beneficiary’s job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution. normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research. Essentially, there should be a logical nexus between the work performed by the beneficiary and the essential purpose, mission, objectives or functions. In the case of the private practice group, this argument can be successfully made where the beneficiary will assist in the training of medical residents, or is involved with institutional research.
Q. If an H-1B physician changes from a cap-exempt to cap-subject, what are the obstacles?
A. In a recurrently encountered situation, an IMG enters the United States to undertake a program in GME in H-1B status at a university institution, thereby qualifying for H-1B cap exemption. At the end of the program of GME, the IMG then pursues employment at an employer that does not qualify for H-1B cap exemption.
Obviously, the new employer can register the physician in the H-1B lottery.
Also, depending on a variety of factors, including whether or not the employment site is located in a designated medically underserved area and the physician’s country of nationality, the IMG could conceivably file a Physician National Interest Waiver[11] along with a concurrently filed I-485 adjustment of status application, thereby avoiding entirely the uncertainty of pursuing H-1B status. However, the backlogs in the employment-based second preference category complicates this approach.
There may be other options that might enable the case to be filed as a cap-exempt basis, including:
- Structuring the employment so that part of the IMG’s services is performed “at” an H-1B cap exempt institution. As discussed, USCIS has been requiring that the IMG perform services that advance and support the educational activities of the university or university-affiliated institution.
- Concurrent employment involving a cap-exempt employer, thereby requiring the filing of two separate H-1B petitions. In a more aggressive approach, it would be possible to file concurrent H-1B petitions in which the employment duties at the cap-exempt employer will be conclude at a point of time earlier than for the cap-subject employer. This strategy would make any further H-1B extensions quite problematic.
- If the IMG’s spouse is in J-1 status, there may the option to changing into J-2 status and then applying for employment authorization.
- In select instances, it may be possible to qualify the IMG for O-1 status as an “alien of extraordinary ability.”
There are many other questions that are encountered by immigration practitioners who regularly represent IMGs, and the authors have covered just a few basics in this article. Clearly, representation of physicians is a niche area of immigration law and involves a clear understanding of not only immigration laws and policies, but also how they interact with the norms of the medical profession and the specific requirements that the medical field places on IMGs.
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[1] http://www.ecfmg.org/certification/definition-img.html
[2] Possession of an ECFMG is the required credential both to enroll in an accredited program of Graduate Medical Education (GME), which is a prerequisite to medical licensure, and to apply for a J-1 visa in order to enroll in a GME program.
[3] 8 CFR § 214.2(h)(4)(viii)
[4] http://archive.hhs.gov/news/press/1992pres/920916.txt
[5] AILA Memorandum on Eligibility of J-2 Derivatives to Obtain Nonimmigrant Classifications, AILA Doc No. 13051601, Dated May 15, 2013
[6] AILA InfoNet Doc. No. 06060860
[7] AILA InfoNet Doc. No. 11031760
[8] AILA Infonet Doc No. 11111665
[9] See: “Practice Pointer: Cap Exemption for Nonprofits Affiliated with Qualifying Institutions of Higher Education,” December 29, 2014 (AILA InfoNet Doc No 14122941)
[10]Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (AILA Doc No. 06060861)
[11] INA 203(b)(2)(B)(ii)