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The path to US residency for foreign physicians has long been a series of obstacles leading to a dead end for many. With limited options to obtain even a temporary visa and burdensome requirements to reach the opportunity for the green card stage, many foreign physicians were not able to help fill the healthcare shortage, even when interested, due to unsuccessful attempts to navigate US immigration jurisprudence. More concerning, President Trump’s tweet on April 20th calling for a “temporary suspension of immigration” caused concern that needed physicians and healthcare workers would face further barriers to entry.

However, as it turns out, the text of the President’s Executive Order carves out exceptions for physicians and healthcare workers in two different ways. At the same time, some US states have significantly eased licensing requirements including the recent pronouncement by New Jersey that foreign physicians could immediately move to obtain licensure in that state. Below I discuss how the President’s Executive Order coupled with the easing of medical licensure requirements allow for a potential unique opportunity for foreign physicians interested in obtaining a green card in the US through the EB-2 National Interest Waiver process.

Trump’s Executive Order

On April 22, 2020, President  Trump issued a proclamation temporarily suspending the entry of certain immigrants into the U.S.  The proclamation, however, contemplates two exceptions from the suspension for foreign medical professionals.  First, the President exempted from the suspension those foreign nationals “seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”

Perhaps, more importantly, a second exemption provided in the Order is also applicable to the foreign nationals whose entry would be in the national interest. This portion of the Order carries significant implications for foreign-licensed medical professionals who want to apply for U.S. permanent residence (Green Card) through an application under the Standard EB-2 National Interest Waiver). Specifically, if you are a physician who is found to qualify under the National Interest Waiver it would certainly appear that the temporary suspension would not apply to you, regardless of whether you will provide assistance to the US in fighting COVID-19 or in some other area of need or medicine.

It should be noted that both exemptions also apply to the spouses and children under 21 of foreign medical professionals.  These two carefully crafted exemptions make foreign physicians, nurses, and other healthcare professionals (and their immediate families) one of the few categories of foreign nationals still allowed – and even encouraged – to immigrate to the United States at this time.

The Department of State (DOS) has also addressed the shortage of medical professionals during the COVID-19 crisis.  On April 8, 2020, the DOS has stated that despite the worldwide suspension of routine visa services, medical professionals with an approved U.S. non-immigrant or immigrant visa petition, particularly those working to treat or mitigate the effects of COVID-19, can request an emergency visa appointment to their nearest U.S. embassy or consulate.

US States Ease Licensing Requirements for Foreign Physicians

As the number of COVID-19 (coronavirus) infections keeps rising, the United States is struggling to maintain a full supply of medical professionals to fight the pandemic. As such, both the Federal Government and the States that that are coronavirus hotspots are taking steps to address the shortage of doctors and other healthcare professionals. So far, the most significant steps have come from the State of New Jersey, one of the States hit the hardest by the COVID-19 crisis.

On April 17, 2020, New Jersey Governor Phil Murphy announced the need to expand the physician workforce during the COVID-19 crisis.  Governor Murphy declared it to be in the “public interest” to temporarily authorize “the practice in New Jersey of foreign doctors in good standing in other jurisdictions.”

Through Governor Murphy’s Order, New Jersey State authorities can now issue licenses “to practice medicine and/or surgery, on a temporary basis for the duration of the State of Emergency or Public Health Emergency, whichever is longer, to any physician […] who is licensed, in good standing, in another country” and who has “engaged in practice for at least five years and has engaged in clinical practice within the last five years.”

To facilitate the issuance of emergency medical licenses to foreign-licensed doctors, the State has suspended (for the duration of the State of Emergency or Public Health Emergency, whichever is longer) the requirements pertaining to examination for licensure, to premedical education, to additional education, to examination and other fees, and to medical malpractice insurance coverage.

Other States have also taken steps towards easing licensing restrictions for foreign-educated doctors to address the rising shortage of medical professionals. For example, at the end of March, New York Governor Andrew Cuomo issued Executive Order No. 202.10, which allows graduates of foreign medical schools who are not licensed in New York but have completed at least a year of U.S.-based medical graduate education to provide patient care in hospitals.  Similarly, on April 1, 2020, Nevada Governor Steve Sisolak issued Declaration of Emergency Directive No. 011, which authorizes the Chief Medical Officer of the State of Nevada to approve the waiver and exemption of professional licensing requirements for providers of medical services who have received training in another country but are not currently licensed in the United States (subject to credentials verification).

The implications of President Trump’s proclamation and of Executive Orders like Governor Murphy’s and Governor Sisolak’s are very significant for foreign physicians and healthcare professionals seeking to apply for US permanent residence under the EB-2 NIW.  Though not a legal requirement in Standard EB-2 NIW applications, medical licensure in the U.S. can help foreign doctors to show that they will be well-positioned to carry out their endeavor in the U.S. The EB-2 NIW provides a path to US permanent residence to those foreign professionals who possess a US or foreign equivalent advanced degree (i.e. a doctorate or master’s degree or a bachelor’s degree followed by 5 years of progressive experience) in the field of expertise and who are able to show that the proposed endeavor has both substantial merit and national importance (such as combating COVID-19) and that they are well positioned to carry out the said endeavor in the U.S.

All in all, signals from both the Federal Government and State authorities highlight the national importance of combating COVID-19 as well as the rapidly growing shortage of medical professionals in the US.  As such, we recommend that foreign-trained medical personnel that meet the above criteria and are interested in developing a career in the US contact our experienced United States immigration attorneys at Colombo & Hurd. We have extensive experience in representing physicians and healthcare workers obtain immigrant visas in the US through the EB-1 Visa as well as the EB-2 NIW Visa.  For a free evaluation of your credentials for the EB-2 NIW please complete the form through the link or contact us online for a consultation.

Alessandro Giordano

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