Meet Elissa Taub, Immigration Attorney

Can you tell me your job title and what you do in regard to helping physicians?

I’m a partner in an immigration law firm and the head of our healthcare immigration practice. I’ve been a full-time immigration lawyer for 15 years and have been practicing for 22 years. My focus is almost entirely on handling immigration petitions for medical professionals. This includes everyone from physicians to medical technologists and even physical therapists.

What are some of the biggest challenges of your job?

One of the biggest challenges facing us and immigrating physicians is simply that the government’s processing is largely out of our hands. The U.S. government does substantive handling of visa petitions and the time it can take to process paperwork can vary wildly, even from one petition to another.  I like to tell our clients that when it comes to U.S. immigration processing, the only consistency is inconsistency. 

How do you prepare physicians and hiring employers for that level of uncertainty?

When we advise, we don’t even attempt to tell people how long the process is going to take. We can offer general guidelines and set certain expectations, but actual timelines are out of our control. The whole process is inherently stressful. It’s frustrating to employers, recruiters, and potential employees. Unfortunately, there isn’t much we can do about it other than to be prepared.

When looking at the range of possibilities, the fastest I’ve seen a petition go through is four months. The slowest ones can take up to 9 months. This is why we tell our clients to apply for positions as early as possible. 

It is never too early to start looking for a job. The quicker physicians get that lined up, the better they will feel about the whole timeline because it takes a lot of the most stressful elements away. The same goes for employers looking to hire a visa-holder. The sooner you can hire them, the easier your role in the process will be as well. 

I always give our clients this advice: don’t talk to your friends or colleagues about this, because their experience is going to be completely different from yours.  Comparison is only going to cause you more stress.

What are some of the most rewarding parts of your job?

I love that I get to navigate the entire immigration lifecycle with our physician clients — from finishing a fellowship to entering their first job, to obtaining a green card, to finally getting U.S. citizenship. I’ve been privileged to walk that entire journey alongside physicians and their families. One of my favorite things is being able to watch people you’ve known for years go through their naturalization ceremony. It’s hugely rewarding.

Another part of my job that I love is connecting great physicians with patients who genuinely need their expertise. There are so many employers and patients that are in need of care, and we are helping qualified physicians get to the patients that need them.

Let’s really dive in here. Can you provide a brief overview of the H-1B and J-1 visa sponsorship process for employers?

Being brief will be difficult, but I’ll do my best. I’ll start with the J-1 process.

The J-1 visa process

Step 1: Federal agencies

Every physician who comes to the US on a J-1 for the purpose of a medical residency or fellowship promises that when they complete that training they return to their home country for two years. This requirement doesn’t go away under most circumstances. There is no waiting period or even exception for marriage. The only way around this two-year requirement is to get a waiver, the most common of which is a J-1, which involves signing a 3-year contract to work in an underserved area that is designated by the Health Resources Services Administration (HRSA).

Of these kinds of waiver programs, the most well-known is the State Conrad 30 program. The rule is that each state can support 30 physicians per fiscal year.  The challenge with these programs is that each state, regardless of size, gets the same number of physicians. So, California gets the same number of allotted physicians as Rhode Island.  This is done so that there are still incentives for physicians to go to smaller, less popular locations. 

At the same time, there are agencies of the U.S. government that are empowered to provide waivers for the same contract term. The important difference is that federal agencies are allowed to offer as many waivers as they want — they are uncapped. This makes them an invaluable resource for anyone looking to hire a visa-holding physician.

There are several of these federal agencies, each of which specializes in a different kind of medicine or demographic. For our purposes, there are three that we can leverage. 

The Appalachian Regional Commission serves 423 counties across 13 states in the Appalachian region, including all of West Virginia.

The Delta Regional Authority covers counties in 8 states, with virtually all of Louisiana.

The Southeast Crescent Regional Commission is brand new and covers counties in 8 states all along the east coast and Gulf of Mexico. The emergence of the SCRC is very exciting as it covers the entire state of Florida, which is an extremely popular destination. 

It’s important to note for physicians and employers that each of these agencies has similar, but still different, requirements and guidelines.  On top of that, every state has a federal program that administers how they allot their waivers differently from every other program. While there is no standardization between states or agencies, there are some commonalities. For example,  the types of things that vary between agencies and states are relatively consistent. Specifically, deadlines and rubrics are almost always different from state to state or agency to agency.

Step 2:  U.S. Department of State

Once the waiver is granted by whatever agency we’ve submitted to, the agency alerts everyone involved — the physician, the employer, and us. They then send a copy of the applications to the U.S. Department of State in Washington D.C.  In order to move things as quickly as possible, we’ve already filed a different document with the State department months before this moment to open a case number in preparation for them to receive that case. They then send that to the United States Citizenship and Immigration Services (USCIS) for final approval.

With so many agencies involved, you can see why sometimes this can be a long process. It is common for the process to lag at one agency or another based on their volume and staffing.

Step 3: Changing visa status

Once everything is approved, a petition is filed to change the visa status from J-1 to H-1B. 

Once these physicians complete their three year waiver term, they are exempt from the H-1B cap or the H-1B lottery.   They have an automatic pass.  Importantly, this means that all sorts of employers can sponsor doctors for these visas.

Why might a waiver not be successful?

A waiver might not succeed because a state received too many applications and they can’t legally approve them all. In the case of State Conrad 30, if there are more than 30 applications — which happens regularly — then some physicians are inevitably going to lose out.   

I would like to point out that in these situations the determining factor of which physicians get visas and which don’t isn’t the quality of the physician. Instead, evaluators use the level of need in the area the physician is trying to serve as the determining factor. Areas with the most need, usually rural ones, are the ones that get prioritized.

The H-1B visa process

The H-1B is interesting because we are seeing fewer graduating physicians in the US on an H-1B every year.  In most cases, these are doctors that are on an H-1B coming out of fellowship. The rules that apply to these doctors are completely different from the ones who have completed a J-1 waiver term and are now on an H-1B and are exempt from the cap, which can make things confusing for employers.

For doctors who are training on H-1Bs, there are two challenges. The first is that a person can only spend six years in H-1B status. Fellowship and residency usually take up 5-6 years of this. That means these physicians need to do some urgent green card processing. 

It is essential that H-1B doctors plan in advance how they’re going to navigate the green card process.  The best way to do this is by getting a job very early, so an employer can help them through the process. Physicians need to be putting in the work around the intersection of residency and fellowship to make sure they don’t run out of time. 

It’s worth noting that sometimes we are able to change people from H-1B to O-1, which is for physicians with extraordinary ability or credentials. This is more the exception than the rule, and I would encourage doctors not to rely on it. 

The hurdles of the H-1B

Most H-1B physicians are working in nonprofits or hospitals that are academic in nature. There is a nationwide cap on how many H-1Bs there can be. But there are exemptions. These exceptions are for institutions of higher education, nonprofit organizations that are affiliated with higher education, and the government.  So, most of these physicians are exempt because they are at nonprofit organizations

When these physicians get a job at a for-profit organization, they are immediately subject to the national cap. To solve this, there is a nationwide lottery. Those that are chosen get to keep their H-1B status, the rest do not. Getting selected in the lottery is challenging. In 2022, there were over 400,000 physicians in the lottery, but only 85,000 H-1B visa slots were available. 

There are some ways to improve your odds. For example, if someone has an advanced degree from a US college they get some extra help because they get to go through twice, but other than that, everyone is in the same bucket. Then there are ways for nonprofits to have a workaround. If a physician is employed by a for-profit institution but works most of their time at a nonprofit hospital, that is an exemption.  These are rare cases, but they do happen.

The lottery should always be considered a last resort — I advise clients to have a Plan B and C in the likely event they aren’t chosen.

The reality of hiring visa holders

What does an employer need to know about sponsoring a visa holder?

A lot of the process is driven by the employer. There is a lot of data, information, and time that is required of them. Employers often think “This is the doctor’s visa, they need to take responsibility for it.” This isn’t true. Employers need to take ownership of the process, understanding that they are doing it for the doctor’s benefit. 

As a law firm that initiates these applications, it’s important for us to have a contact at the employer that is able to obtain the information that we need — patient demographics, medicare patients, etc.  It is essential for there to be healthy cooperation between the employer and the law firm for everything to run as smoothly as possible.

Specifically for the H-1B visa, there are retention documents that lawyers will walk employers through to make sure there aren’t any potential liability risks. It’s important for employers to know they have a big role to play. That said, they shouldn’t shut the idea down, it’s not a full-time job.  In terms of cost, the US Department of Labor mandates that all fees and costs be paid for by the sponsoring employer. None of these can be passed on to the employee. You don’t want that, it’s a compliance issue.  

On the J1 side, the cost issue is less clear-cut. Many employers will still pay the fees as a recruitment tactic in a competitive market even though it’s not legally required.  This is also a good policy to cover any liabilities as well.

Legal fees will vary, as each firm will be different. Government filing fees also vary based on what state you’re filing in and the size of the employer, specifically for H-1B.  

As a general frame of reference, the total cost could land anywhere between $15K-$20K for a J-1.  The H-1B is less expensive, generally ranging from $7-$10K.

What are some of the misconceptions employers have about visa holders?

The most common misconception is that patients won’t want to go to a doctor that is from another country. The thought process is that rural areas won’t have as many immigrants and therefore may not trust the doctor. In my experience, this tends to be more projection by hiring managers than reality, even in very rural areas.  

I’ve sometimes heard concerns about English capabilities, which is almost never an issue. By the time a physician has been training, living, and working in the U.S. long enough to get to this point, their English is fine.

Finally, I’ve heard concerns that these kinds of physicians don’t stay. They do their three years and they are gone. We do a number of extensions every year, and many of these are for immigrant doctors in small rural areas that aren’t very diverse. These extensions mean that the practices want to keep the physicians there, and the physicians want to stay. Yes, many also leave, but there’s no guarantee a practice will keep an American doctor any longer than a visa-holding one.

In fact, American physicians have more flexibility with where they can work because they don’t have to worry about visa requirements.  Visa holders are also locked in for at least three years, which an American doctor isn’t. In my opinion, having a qualified physician for three years is much better than having no one.  It’s no secret that there is a huge shortage of doctors; practices need to focus on physician retention as much as recruitment.

What are some of the benefits of hiring a visa holder?

In addition to what I’ve already talked about, visa holders can provide additional perspectives. Practices may pull in patients they didn’t even know were in the community. I’m a firm believer that bringing in people from diverse backgrounds is generally beneficial.  

I’ll end by saying that these physicians are people who have worked really hard to be where they are. They had a dream to come to the United States and work, regardless of the many extra hoops they had to jump through and the challenges they had to face, and they are living that dream out. That is pretty inspiring.

Elissa J. Taub is an attorney in the Memphis office of Siskind Susser PC, where she practices primarily in the areas of physician and nurse immigration. She has extensive experience with J-1 waivers, H-1Bs, O-1s, EB-1 extraordinary ability petitions, National Interest Waivers and labor certification based green cards, as well as a variety of other business and family immigration processes.