Two new laws may offer some needed relief for physicians and registered nurses. The new laws were signed by the President in late September and mid -October, respectively. Physicians and nurses should consult with experienced legal counsel to determine their eligibility for benefits.
The most significant change is that all physicians who failed to receive approval of their waiver requests from INS prior to October 1, 1996 are subject to the requirement that they practice medicine for an employer located in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) for a minimum of three years.
Before enactment of the new law, most physicians obtaining J waivers proceeded directly to apply for permanent resident status, usually by means of a national interest waiver. Now, all physicians receiving interested government agency waivers must obtain H-1B visas for three years or more.
Because many of these physicians are out-of-status, they must exit the U.S. and apply for an H-1B visa at a U.S. Embassy or Consulate abroad. A section of the new law prohibits out-of-status applicants from obtaining nonimmigrant visas in Canada or Mexico unless "extraordinary circumstances" exist. This provision will force most out-of-status applicants to return to their home countries in order to apply for a visa.
So what's the good news? After some intense lobbying by the American Immigration Lawyers Association, the U.S. Consulate in Toronto, Canada has ruled that a physician who has an H-1B petition submitted on his behalf prior to the expiration of his J status has demonstrated "extraordinary circumstances" and has agreed to accept applications for H-1B visas from such physicians.
A key provision of the legislation (S. 2197) provides that nurses are not allowed to "change employers". The question which remains is whether nurses who are no longer working for their original employers may be restored to H- 1A status. If so, the legislation is significant. If not, it would be almost meaningless since employers were legally obligated to terminate any nurse on the day that her legal status expired. Therefore, almost all H-1A nurses are now working for employers other than their original petitioners.
To be effective, the change of employer provision should be read to prevent nurses who change employers after the enactment of the legislation from changing employers in the future, but not to disqualify nurses who changed employers in the past from qualifying to have their H-1A status restored.
INS regulations which are mandated by Congress to be issued by November 10, 1996 are expected to resolve this important issue.
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