There are many medical doctors in the U.S. who are out of status. Some foreign-born doctors have grown up in the U.S., and attended high school, college and medical school here. They may be out of status, but have been granted DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), or have pending asylum applications. All three, DACA, TPS, and asylum, allow the beneficiary to receive a work authorization card which is renewable. Thus, the aspiring doctor will have a social security number and will be work-authorized. However, DACA, TPS and having an asylum application pending are not considered a legal status, they are considered to be out of status, although not accumulating unlawful presence (NB – a grant of TPS may be considered an admission, if the applicant is residing in the 9th or 6th Circuits. More about that in Part 2).

Other foreign doctors (called IMGs, International Medical Graduates) have attended medical school abroad, had careers as doctors abroad, and then come to the U.S. For whatever reason, they are also out of status, although they may also have work authorization through TPS or asylum applications.

Like all doctors, foreign-born doctors must take and pass the US MLE, which has three steps: Step 1 tests whether the doctor understand concepts fundamental to medical practice; Step 2 CK, tests clinical knowledge; Step 2 CS, tests clinical skills; Step 3 tests whether you can use medical knowledge to manage patient care in an ambulatory setting. Step 1 may be taken abroad, but the two parts of Step 2 and Step 3 must be taken in the U.S.

If you attended medical school abroad, then you will need to obtain an ECFMG certificate. However, even if you were born abroad, as long as your medical education was here in the US, you will not need an ECFMG certificate. For example, Lisa was born in India, and came to the U.S. before turning 16. She has DACA, work authorization and a social security number. She attends Weill Cornell Medical School. She does not need the ECFMG, even though she does not have the green card, as she is attending a US medical school. On the other hand, Amel, who attended medical school in Egypt at the University of Cairo and practiced as a medical doctor in Egypt and Saudi Arabia, will need an ECFMG certificate because her medical education was abroad not in the U.S.

Many foreign-born doctors come to the U.S. on a J-1 visa to work as medical residents in hospital residency programs, and are sponsored by the ECFMG. This avenue, however, is not open to foreign doctors living out of status in the U.S., even though they may have work authorization.

In general, out of status doctors here in the U.S. will not be eligible for a J-1 visa to participate in a residency program. The J-1 visa requires that the applicant prove that he or she has a temporary intention in coming to the U.S., and that he or she will return to their home country at the end of the program. The J-1 will also have a two-year foreign residency requirement.

Additionally, a J-1 requires a Statement of Need from the home country, that the country needs doctors in the particular specialty and that the applicant will be returning to their home country when the program is completed. Obviously, asylum applicants, DACA and TPS beneficiaries will not be able to meet this requirement.

A medical doctor in the U.S. who has DACA, TPS or an asylum application will not be able to prove that their intention in staying in the U.S. is only temporary. They will not be able to show that they have a residence abroad which they have no intent of abandoning. Thus, the J-1 is not an option.

Out of status doctors on DACA, TPS or with an asylum application, however, may be eligible for the H-1B visa if they have not accumulated 180 days or more of unlawful presence. In order to qualify for the H-1B visa, the medical doctor must have either a state license, or they must prove eligibility for a state license but for lack of a social security number.

There is a difference between being out of status, and accumulating unlawful presence. It is an extremely complex area of law, so we will not go into the details, but will provide a couple of examples. For example, our aspiring medical doctor Lisa came to the U.S. as a young child. She applied for and received DACA and her work authorization before her 18th birthday. Unlawful presence only starts accruing after one’s 18th birthday. Since she has had DACA and work authorization since prior to her 18th birthday, she has not accumulated unlawful presence. She is now in medical school. She would be able to apply for an H-1B to work as a medical resident in a residency program. Once the H-1B petition is approved, she would be able to obtain an advance parole through DACA and go abroad to apply for the H-1B visa. Even if her H-1B visa is denied, she may still return to the U.S. on the advance parole through her DACA.

For our medical doctor Amel, however, the situation is different. Suppose she applied for asylum within a few months after coming to the U.S. on a B visa. She has had work authorization through the asylum. She also would not have accumulated unlawful presence if she applied for asylum while her B status was still valid, but her problem is that she could end up stuck outside of the U.S. if she goes abroad to apply for the H-1B. As an asylum applicant, she will not be able to obtain an advance parole, so if her H-1B is denied, she will end up stuck outside the U.S. and not be able to return.

However, it is not necessary to qualify for the H-1B to participate in a residency program, as long as you have work authorization.

The ERAS (Electronic Residency Application Service) asks very detailed questions regarding the applicant’s immigration status. The application not only asks about current work authorization, it also asks very detailed questions about whether or not the applicant needs J-1 or H-1B sponsorship, and it requires answers regarding the applicant’s specific immigration status. Thus, our aspiring doctor Lisa must disclose on the application that she has work authorization through DACA.

By law, employers in the U.S. are not supposed to discriminate against job applicants based on their immigration status. In addition to discrimination based on immigration status, hospitals cannot require more or different documents than what is specified in the Form I-9, which is called document abuse. In particular, employers, including hospitals, are not supposed to discriminate against job applicants because they hold a work authorization card with an expiration date. If a hospital refuses to hire an applicant because he or she has an EAD (employment authorization document) with an expiration date, this is illegal discrimination and the applicant would have a claim against the hospital. See,

Moreover, it is questionable that the online application system itself requires such detailed information regarding immigration status on the form. Providing this detailed information is required. It is questionable whether the application itself, the software system, encourages and fosters employment discrimination.

Copyright 2020 © Heidi J Meyers, all rights reserved.