Immigration Lawyer Helps IMGs Avoid Visa Traps

Rolando Velasquez, J.D., is the son of two international medical graduates (IMGs) from the Philippines. He is also an attorney who specializes in immigration law. Velasquez came to APA's annual meeting in San Francisco in May to offer practical-and valuable-advice to a new generation of IMGs who want to stay in the United States or at least avoid any immigration-law traps that could jeopardize their stay.

Emphasizing that "immigration law is getting more complicated every year," Velasquez advised psychiatrists at a workshop sponsored by APA's Committee on International Medical Graduates to pay particular heed to the provisions of two sections of the Immigration and Nationality Act.

The first, Section 212(e), bars anyone admitted into the United States under a J-1 visa from obtaining permanent residency status until that person has resided and been physically present in his or her country of origin or last residence for at least two years after leaving the United States, as that type of visa requires. Section 212(a)(9)(B) of the act covers persons who are "unlawfully present" in this country for more than 180 days but less than one year and leave the United States voluntarily. Those individuals, who often end up staying when they are not granted a visa waiver, will not be allowed back into the country until they have spent three years in their home country. For individuals who have overstayed their visa by more than a year, the law prohibits them from returning as immigrants for 10 years from the time of their voluntary or forced departure. The government does allow exceptions to the requirement to return to the home country for two years if the applicant can demonstrate "exceptional hardship," Velasquez said.

Hardships that can qualify an IMG for the waiver include separation from a spouse or child who is a legal permanent resident in the United States, when the separation will cause financial or other hardship. The applicant must provide immigration officials with documents that prove the relationship, he pointed out, as well as financialdisclosure statements and an explanation of why a hardship will result if the applicant leaves the country.

If the expected hardship is a medical one, the applicant must provide an explanation and proof of the medical condition at issue, Velasquez explained.

He described factors that the government weighs when deciding on an IMG's waiver application. Among them:

	The immigrant's inability to support his or her family abroad or households in the United States.
	The need of a spouse to remain in the United States for employment that is essential to support the family and/or care for a dependent relative.
	Disruption of a spouse's professional career.
	The physical or mental condition of a spouse or child, particularly if the care that can be provided in the home country is inadequate.
	Erroneous advice from a U.S. consular or immigration official to the applicant.
	Fear of persecution in the immigrant's home country based on race, religion, nationality, membership in a particular social group, or political opinions. This is a factor that few doctors can use successfully, he noted, because it is unlikely that the home country will persecute a "valuable commodity" such as physicians.

Velasquez also outlined several factors that are usually insufficient for an IMG to receive a visa waiver allowing him or her to remain in the Unites States:

	The applicant's separation from his or her family in the absence of proven hardships.
	The desire to remain in the country because of income and career opportunities.
	Avoiding military service in the home country.
	The birth of a child in the United States to the applicant and a spouse who is not a legal permanent resident. That a child does not speak the native language of the home country is not a factor that will lead to a waiver.

Finally, certain government agencies may issue waivers to meet the goals of their mission. The agencies are the Appalachian Regional Commission, which covers several states in the Eastern United States; Department of Health and Human Services, which may grant a waiver based on the nature of a physician's work, particularly if it is a program of national public interest; Department of Veterans Affairs, if a physician's departure will mean a program must be discontinued; and Conrad State 30 Programs, in which 43 participating states can sponsor up to 30 IMGs to work in health care shortage areas.

Velasquez can be reached by e-mail at [email protected]. The Web site of the law firm for which he works is <www.srs-usvisa.com>.▪