In our Ask the Experts section of Healthcare Immigration News, attorney Adam Cohen answers questions sent in by our readers. If you have a question on healthcare immigration matters, please email [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.
1) QUESTION: Are foreign physicians eligible to receive marriage-based green cards?
ANSWER: Absolutely! Anyone, including foreign physicians, can be eligible for a marriage-based green card, provided they meet the rules governing this process. Sometimes, foreign physicians and their employers can get so focused on the employment visa process that they miss an obvious opportunity through the physician’s bona fide marriage to a United States citizen or lawful permanent resident.
J-1 physicians must be aware that they will still require a J-1 waiver (and fulfillment of the waiver’s conditions) in order to pursue the green card. For example, if the physician received a Conrad State 30 J-1 waiver, he or she will have to finish the three-year commitment period in the underserved area prior to filing the I-485 application.
Additionally, while individuals married to citizens are able to skip the preference classes altogether, those married to residents need to be aware of a current wait of over a year and a half (according to the December 2016 Visa Bulletin) for their priority dates to become current. Some strategy will therefore be necessary to make sure nonimmigrant status can be maintained, given delays associated with the Visa Bulletin and any J-1 waiver conditions.
Apart from this fact, as long as the married couple can establish the validity of their marriage, this process is typically easier than the employment-based green card process. As a result, foreign physicians are encouraged to evaluate the marriage-based process along with the employment-based process when considering their green card options.
2) QUESTION: What do the terms “actual wage” and “prevailing wage” mean?
ANSWER: A foreign employee’s wage is very important in the context of H-1B petitions, the labor certification-based green card process, and often Conrad-based J-1 waiver applications. In these contexts, the employer must demonstrate that it will pay the foreign employee the greater of (1) the actual wage rate (that is, the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question) or (2) the prevailing wage.
The prevailing wage is determined by reliable wage data for the foreign employee’s occupation in the area of intended employment (that is, the area within normal commuting distance of the address of intended employment). Typically, this data comes from the Department of Labor, Bureau of Labor Statistics (BLS) under the Occupational Employment Statistics (OES) Program. This wage data is updated every year and is made available on the Foreign Labor Certification Data Center On-Line Wage Library at www.flcdatacenter.com/.
However, there are gaps in OES data for certain years and/or areas of intended employment. In those cases, there are often default wages provided by the BLS. Alternatively, an employer can file a prevailing wage request (which is required for the labor certification anyway) or possibly use its own reliable wage survey.
With respect to the actual wage rate, there has been recent case law highlighting the importance of the employer’s actual wage determination. In Sajida Ahad, M.D. v. Southern Illinois University School of Medicine, 2015-LCA-00023 (April 13, 2016), the U.S. Department of Labor ruled that the physician employee was not paid the required actual wage and ordered that the physician be paid nearly a quarter of a million dollars in additional wages.
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