For physicians, as well as for all other foreign nationals, obtaining a green card through the PERM labor certification process actually has three steps and three separate applications: 1) First, is the PERM labor certification, filed with the US Department of Labor; 2) Second, the petition for alien worker, Form I-140 filed with USCIS and 3) Third, the application for adjustment to permanent residency, Form I-485, also filed with USCIS when the priority date is current.
In the first step, the PERM labor certification, the employer has to show that there is a shortage of US workers to do the job. The United States does have a shortage of doctors. Partly because of our aging population, the US expects to have a shortage of 46,900 to 121,900 doctors by 2032, according to the Association of American Medical Colleges. See, https://www.cnbc.com/2019/09/06/americas-aging-population-is-leading-to-a-doctor-shortage-crisis.html.
The employer has to settle on a job description and requirements. However, the employer cannot include requirements which the doctor employee does not already have at the time the application is filed. So, the PERM cannot include requirements that the foreign national doctor anticipates obtaining later, even if in the near future. For example, if the PERM labor certification application includes the requirement that the doctor must be board certified or board eligible (BC/BE), these requirements necessarily include graduate medical training. However, if the physician beneficiary is still in graduate medical training when the PERM is filed, then the application will be denied because the beneficiary foreign national did not meet the employer’s requirements at the time of filing.
If the doctor has been educated abroad rather than in the US, he or she must have their degree recognized by the Educational Commission on Foreign Medical Graduates (ECFMG) and a state medical board as being equivalent to an MD from the United State.
Additionally, the position must be permanent. The US Dept of Labor does not consider graduate medical training positions to be permanent. An employer cannot file a PERM for residency or fellowship positions.
Then, the employer has to file a Prevailing Wage Request with the US Dept of Labor. The prevailing wage is the average wage paid to US workers in the same occupation in the same geographical area, with wages divided up by level of experience, from entry-level positions, Level I, to the most experienced positions, Level 4. The US Department of Labor uses different wages depending upon the doctor’s specialty. For example, there are different wage tables with widely varying wages for gynecologists/obstetricians, family and general practitioners, anesthesiologists, internists, psychiatrists, surgeons, podiatrists, as well as other specialties. It is currently taking the US Dept of Labor about three months to issue prevailing wage determinations.
The employer then has to advertise the job at the higher of either the prevailing wage or the actual wage. If the foreign national’s actual wage is higher than the the wage listed in the prevailing wage determination, the employer has to advertise the position using the higher actual wage. The employer has to place a 30-day job order with the State Dept of Labor, post a Notice of Filing in a conspicuous place in the workplace, and run two Sunday ads in the newspaper of general circulation, and the employer must choose the paper with the largest circulation for their area. Additionally, because it is a professional position, the employer has to use three additional forms of recruitment, which may include trade or professional journals, the Journal of the American Medical Association, among others, the employer’s web site, online job sites, employee recruitment firms, radio and TV ads, etc.
The employer then has to contact and interview all applicants who appear to be qualified for the position and have job related reasons for rejecting any US workers. The employer must wait at least 30 days after all recruitment is completed to file the PERM labor certification. Once the PERM is approved, the employer and physician employee may move on to the next step of filing the Form I-140 petition and if the priority date is current, the application for adjustment to permanent residency, Form I-485.
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