USCIS Adopted Decision Clarifies Requirements for Qualifying as "Physician of National or International Renown" for H1B Purposes

• Introduction
• Procedural History
• Relevant Statutes and Regulations
• Analysis, Discussion, and Decision
  • Definitions of Key Terms
  • Evidence Required
  • Discussion of the Facts in the Instant Case
• Conclusion

 

Introduction

On January 4, 2017, the United States Citizenship and Immigration Services (USCIS) made the Administrative Appeals Office (AAO) decision in the Matter of T-O-S-U-, Adopted Decision 2017-01 (AAO Jan 4, 2017), an adopted decision of the USCIS [PDF version]. This means that the Matter of T-O-S-U- will now constitute binding policy on the USCIS and all of its employees. To learn about what an adopted decision is, and how it is distinct from a precedent decision, please see our full article [see article].

In the Matter of T-O-S-U-, the AAO held that a “physician of national or international renown” — for the purpose of regulations in 8 C.F.R. 214.2(h)(4)(viii)(C) — “is a doctor of medicine or osteopathy who is the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States.” Being classified as a “physician of national or international renown” allows an alien who is the beneficiary of an H1B petition to be exempt from the normally applicable medical licensing examination requirement. The effect of this new adopted decision is to clarify how the USCIS will determine whether a physician beneficiary of an H1B petition qualifies as a “physician of national or international renown.”

In this article, we will examine the facts of the Matter of T-O-S-U-, the AAO's analysis and decision, and what the USCIS adopting the Matter of T-O-S-U- means for “physician of national or international renown” determinations going forward.

Procedural History

The Matter of T-O-S-U- arose from a Form I-129, Petition for a Nonimmigrant Worker, filed to classify the Beneficiary as an “Assistant Professor — Clinical Physician,” as an H1B nonimmigrant worker. The petition was denied on the basis that the USCIS had found that the evidence did not demonstrate that the beneficiary was exempt from the U.S. medical licensing examination requirement as a “physician of national or international renown in the field of medicine” and was not otherwise entitled to H1B status under 8 C.F.R. 214.2(h)(4)(viii)(C). The petitioner appealed the adverse decision.

Relevant Statutes and Regulations

The AAO's decision begins by providing an overview of the applicable statutes and regulations along with legal interpretations thereof.

Section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA) provides, in general, for H1B nonimmigrant status [see article].

In addition to the basic H1B visa requirements, there are special provisions covering an alien who is a “graduate of a medical school” and who is coming to the United States to perform services of the medical profession. Section 212(j) of the INA states that such an alien may not be admitted as an H1B nonimmigrant unless (paraphrased):

A. The alien is coming at the invitation of a public or nonprofit private educational or research institution or agency in the United States to teach and/or conduct research at or for such institution or agency, or
B. (i) The alien has passed the Federation licensing examination (administered by the Federation of State Medical Boards of the United States) or an equivalent examination as determined by the Secretary of Health and Human Services (HHS), and (ii) (I) has competency in oral and written English or (II) is a graduate of a school of medicine which is accredited by a body or bodies approved for this purpose by the Secretary of Education (school does not have to be in the United States).

The term “graduates of medical school” is defined in section 101(a)(41) of the INA. “Graduates of medical school” are defined as “aliens who have graduated from a medical school or who have qualified to practice medicine in a foreign state, other than such aliens who are of national or international renown in the field of medicine.” (Emphasis added.) The instant case will focus on the provision exempting “aliens who are of national or international renown in the field of medicine” from the licensing and language requirements of section 212(j)(B)(i).

The AAO explains that because section 101(a)(41) excludes from the definition of “graduates of medicine” those who are “aliens … of national or international renown in the field of medicine,” the former Immigration and Nationality Service (INS) (the precursor to the USCIS) determined in 1994 that aliens who are of national or international renown in the field of medicine are exempt from the restrictions in section 212(j). The INS rule was published in the Federal Register (FR) at 59 FR 1468 (Jan. 11, 1994) [PDF version]. However, the term “aliens who are of national or international renown in the field of medicine” is not defined in the INA. For this reason, the former INS promulgated regulations to make explicit that an H1B beneficiary who is a “physician of national or international renown” is exempt from the statutory requirements in section 212(j) of the INA.

The regulations for the criteria and documentary requirements for H1B physicians are found in 8 C.F.R. 214.2(h)(4)(viii). Part “A” covers the beneficiary (alien physician's) requirements whereas part “B” covers the petitioner (employer) requirements. The petitioner requirements reflect rules derived from section 212(j) of the INA. Therefore, 8 C.F.R. 214.2(h)(4)(viii)(C) exempts an H1B petition for a “physician of national or international renown” from the requirements of 8 C.F.R. 214.2(h)(4)(viii)(B). The beneficiary of an H1B petition who is a physician of national or international renown remains subject to 8 C.F.R. 214.2(h)(4)(viii)(A), in that the beneficiary must:

1. [Have] a license or other authorization required by the state of intended employment to practice medicine, or is exempt by law therefrom, if the physician will perform direct patient care and the state requires the license or authorization, and
2. [Have] a full and unrestricted license to practice medicine in a foreign state or [have] graduated from a medical school in the United States or in a foreign state.

The AAO explained that in order to qualify for an 8 C.F.R. 214.2(h)(4)(viii)(C) exemption, the petitioner must demonstrate that the beneficiary:

1. Is a physician;
2. Is a graduate of a medical school in a foreign country; and
3. Is of national or international renown in the field of medicine.

Analysis, Discussion, and Decision

Definitions of Key Terms

To begin, the AAO sought to define terms pertinent to the issue in the case.

The AAO explains that neither the INA nor the regulations actually define the terms “physician” or “of national or international renown in the field of medicine.” For this reason, the AAO explains that it reviewed the definitions of these terms “with regard to their common usage as well as their meaning within the context of H1B petitions and other nonimmigrant and immigrant classifications.”

For the definition of “physician,” the AAO noted that the term is used only once in the Department of Homeland Security (DHS) regulations. 8 C.F.R. 204.12(a) uses the term in the context of employment-based second preference national interest waivers as follows: “[a]ny alien physician (namely doctors of medicine and doctors of osteopathy).” (Emphasis added.) This regulation was published in the Federal Register at 65 FR 53889 (Sep. 6, 2000). The AAO noted that the regulations of the U.S. Department of Health and Human Services (HHS) use the term similarly at 45 C.F.R. 60.3. The Department of Labor (DOL) and the American Medical Association also use the term “physician” in the same manner as found in the DHS regulations. For this reason, the AAO adopted “doctor of medicine or osteopathy” as its definition of the term “physician” in 8 C.F.R. 214.2(h)(4)(viii)(C).

Relying on common dictionary definitions, the AAO defined the term “national or international” as meaning “within one (whether foreign or the United States) or more countries.”

Similarly, the AAO relied on common and contemporary dictionary definitions to define the word “renown” as “the state of being widely acclaimed and highly honored.”

The AAO noted that if one combined its definitions, it “could be restated as 'widely acclaimed and highly honored within one or more countries.'” However, the AAO noted that this definition could be problematic, for it can be easier to achieve “renown” in some countries than in other countries. The AAO noted that being classified as a physician “of national or international renown” allows the petition beneficiary to be exempt from requirements that provide safeguards for U.S. patients, such as an exemption from the Federation licensing examination requirement and the English competency requirement. The AAO noted that allowing for an exemption based solely on “national renown” would run the risk of granting exemptions to alien doctors who are not qualified (as in, doctors who garnered national renown in large part due to being in a country where such renown is “more readily achieved”) and would have “potentially adverse effects on U.S. patients.”

Recognizing the issues examined in the previous paragraph, the AAO held that “the standard for national renown should be set at a level that requires achievements necessary to garner national renown in the United States.” The effect of this new rule is that the petitioner must demonstrate that the beneficiary's accomplishments are “comparable to those that would result in national renown in the field of medicine in the United States.”

The AAO summarized its definition of a “physician of national or international renown” as follows:

1. Is a doctor of medicine or osteopathy; and
2. Is widely acclaimed and highly honored in the field of medicine within one or more countries; and
3. The achievements leading to national renown are comparable to that which would result in national renown in the United States.

Interestingly, in footnote 9 of the decision, the AAO reserved, without answering, the question of whether “international renown” would also have to be at a level comparable to that which would result in national renown in the United States. This means that there is no binding USCIS policy on this specific issue.

Evidence Required

The AAO notes that the regulations do not list the types of evidence that may be submitted to demonstrate that an alien beneficiary is a “physician of national or international renown” under 8 C.F.R. 214.2(h)(4)(viii)(C). The AAO looked to regulations for other nonimmigrant classifications that involve “national or international renown, recognition, or acclaim” to determine the types of documentation and evidence that would be persuasive in establishing that a beneficiary is a “physician of national or international renown.” The AAO noted that it considered the regulations for H1B fashion models of distinguished merit and ability [see article], O1 aliens of extraordinary ability [see article], P1 internationally recognized aliens [see article, article], and labor certification under Schedule A, Group II Aliens of Exceptional Ability in Sciences or Arts [see article].

From this study, the AAO compiled the following, non-exhaustive list of evidence that may establish that an H1B petition beneficiary is a “physician of national or international renown” who qualifies for the exemption found in 8 C.F.R. 214.2(h)(4)(viii)(C):

Documentation of the beneficiary's receipt of nationally or internationally recognized prizes or awards in the field of medicine;
Evidence of the beneficiary's authorship of scientific of scholarly articles in the field of medicine published in professional journals, major trade publications, or other major media;
Published material about the beneficiary's work in the medical field that appears in professional journals, major trade publications, or other major media (which includes the title, date, and author of such material);
Evidence that the beneficiary has been employed in a critical, leading, or essential capacity for organizations or establishments that have distinguished reputations in the field of medicine;
Evidence of the beneficiary serving as a speaker or panelist at medical conferences;
Evidence of the beneficiary's participation as a judge of the work of others in the medical field;
Documentation of the beneficiary's membership in medical associations, which require significant achievements of their members, as judged by recognized experts in the field of medicine;
Evidence that the beneficiary has received recognition for his or her achievements or contributions from recognized authorities in the field of medicine; and
Any other evidence demonstration the beneficiary's achievements, contributions, and/or acclaim in the medical field.

It is important to note that the list is non-exhaustive. A petitioner may be able to submit evidence that is not included in the list to establish the beneficiary's qualifications for an exemption. The types of evidence that will best establish a beneficiary's eligibility for an exemption will depend on the facts of the specific case. The USCIS has discretion to determine the proper weight to afford to each piece of evidence, and to consider the evidence in the aggregate in determining whether the beneficiary qualifies as a “physician of national or international renown” by the preponderance (weight) of the evidence. Petitioners should submit all applicable evidence to help establish a beneficiary's eligibility for an exemption.

The AAO is careful to note that although it referenced regulations for other nonimmigrant and immigrant categories to compile its non-exhaustive list of documentation and evidence, the requirements for establishing qualifications as a “physician of national or international renown” are not necessarily equivalent to these other categories. For example, the AAO notes that the standard is not the same as for an “alien of exceptional ability in the sciences” found In 8 C.F.R. 204.5(k)(2). Furthermore, the standard is not the same as is required to demonstrate that an alien is of “extraordinary ability,” as found in 8 C.F.R. 204.5(h)(2).

Discussion of the Facts in the Instant Case

In the instant case, the AAO found that the Petitioner established by a preponderance of the evidence that the Beneficiary was a “physician of national renown in the field of medicine” as defined in the previous sections. We will examine the reasons why the AAO reached this decision to highlight how it applied its rules to the facts of a specific case.

The Petitioner was a university that operated “a multidisciplinary academic medical center.” It sought to accord H1B status to the Beneficiary so that the beneficiary could “perform duties in the areas of teaching, research, and clinical patient care…” The Beneficiary received a Doctor of Medicine degree from a Canadian medical school and was licensed to practice medicine in Canada. The Beneficiary also possessed an active license to practice medicine in Ohio, where the Petitioner was located.

The petitioner submitted “relevant, credible, and probative evidence” regarding the Beneficiary's credentials and employment. The AAO describes the evidence as demonstrating the following:

The Beneficiary was highly trained and experienced in arthroscopy, sports medicine, and arthroscopic hip surgery.
The Beneficiary had a level of clinical experience in the specialty matched by few others in the world.
The Beneficiary performed a majority of his procedures at one of the most respected medical facilities for the subspecialty in Australia.
The Beneficiary wrote numerous highly cited scholarly works in professional journals.
The Beneficiary's work was presented at major medical conferences in the United States, Canada, and France.
The Beneficiary had renown in the field among his peers, as evinced by letters submitted on his behalf by recognized authorities in the field (the AAO held that the documentation showed that the Beneficiary's “work is at a degree of excellence comparable to that which would result in national renown in the United States”).
The Beneficiary served as a physician for a nationally ranked sports team in Canada.
The Beneficiary's salary would be significantly higher than others within the occupation, reflecting his experience and reputation.

After reviewing the totality of the evidence, the AAO found that the petitioner showed by a preponderance of the evidence that the Beneficiary was widely acclaimed and honored in at least one country in his medical subspecialty at a level of renown comparable to that in the United States. Because the Petitioner established that level of renown, the AAO found it unnecessary to consider whether the Beneficiary had achieved international renown. Furthermore, the Beneficiary satisfied the requirements of 8 C.F.R. 214.2(h)(4)(viii)(A) that are applicable to all H1B physicians.

For these reasons, the AAO held that the Petitioner sustained its burden for establishing that the Beneficiary qualified for the exemption in 8 C.F.R. 214.2(h)(4)(viii)(C). The AAO withdrew the USCIS's original decision and sustained the appeal.

Conclusion

The USCIS's decision to designate the Matter of T-O-S-U- as an adopted decision is important in the H1B physician context. The new policy provides a clear definition of “physician of national or international renown” and examples of the types of evidence that will help establish a beneficiary's credentials.

One noteworthy aspect of the new policy is that a physician's “national renown” must be based on credentials that would give the physician such renown in the United States. This standard means that a physician will not qualify for an 8 C.F.R. 214.2(h)(4)(viii)(C) exemption merely by being from a country in which it is relatively easy to obtain “national renown” as a physician. Interestingly, in footnotes 9 and 13 of the decision, the AAO stated that it did not address whether international renown must be at a level comparable to that which would result in national renown in the United States. Because the AAO reserved this question, there is no current binding USCIS policy on the issue.

A second interesting aspect of the decision is that the AAO applied the “preponderance of the evidence” standard to the instant case. This means that the petitioner must only prove that it is “more likely than not” that the beneficiary is a “physician of national or international renown.”

A petitioner seeking to bring a doctor to work in the United States should first consult with an experienced immigration attorney for a full evaluation of all of the immigration options. If it is determined that the H1B visa category is most appropriate, an experienced immigration attorney will be able to determine whether the beneficiary may have the requisite credentials to qualify for an exemption under 8 C.F.R. 214.2(h)(4)(viii)(C) as a “physician of national or international renown.”