DOS Advises on H-1B Medical Researchers

FM SecState Wash, DC
TO AmConsul Madras
INFO AmEmbassy New Delhi
AmConsul Bombay

Unclas State 051454

E.O. 12356: N/A
TAGS: CVIS, IN

Subject: Physicians as H-1B "Medical Researchers"

Ref: (A) Madras 230, (B) 94 Madras 2676, (C) 94 Madras 3118, (D) Madras 3110, (E) 94 Calcutta 1115, (F) 94 New Delhi 18642, (G) 94 Madras 3834, (H) New Delhi 1088, (I) Madras 190

1. This cable has been cleared by INS/CO.

2. VO wishes to offer the following guidance with respect to physicians being petitioned in the H-1B "specialty occupation" category to act as assistants/medical researchers for U.S. physicians.

3. As stated in the FAM, the presentation of a petition approved by INS is in itself to be considered prima facie evidence that the applicant has met the requirements for an h-1b, and disagreement with INS' interpretation of the law or the facts is not sufficient reason to ask that agency to reconsider its approval. In particular, please note that there is no bar to an individual who has qualified as a physician in his/her home country being petitioned as an H- 1B "specialty occupation" which requires that an applicant have attained a bachelor's or higher degree in the specialty. A graduate of an Indian medical school would, of course, meet this threshold requirement. As to whether an applicant's experience is not in the exact same field of medicine in which he is being petitioned, it should be noted that as most physicians receive similar undergraduate educations (keeping in mind the requirement is only for a bachelor's degree) and it may be assumed that as the duties are not those of a physician, divergence in specialties should not necessarily be a bar to visa issuance.

4. However, if during the course of the interview it becomes evident to ConOff that the applicant will be involved in any manner whatsoever in direct patient care - to be construed as performing even the most basic medical procedure - the petition should be returned to the approving office. The taking of patient histories that result in the determination of the nature of the medical condition and/or the suggestion to the physician of possible methods of treatment is not a function of a "medical researcher" and constitutes, in the opinion of INS and VO a ground upon which to return the petition to the approving office. However, VO and INS do not consider the development of questionnaires to be used to determine patient history, etc. and performing tasks of a similar nature that do not require direct patient contact is sufficient to deny a visa. If the job description or the interview indicates that applicants are going to be doing lab work, examining tissues, etc., as long as the "medical researchers" have not drawn the blood, removed the tissue, and are merely recording the results of tests and not making diagnoses or recommendations to the physicians for treatment based on their findings, it does not appear that this can be said to be patient contact and would not be sufficient for denial of a visa.

5. In light of the information post has received from Georgia and Louisiana, VO and INS believe post may require an applicant to provide documentation from the state in which he/she plans to work that there is no objection to an unlicensed person performing the specific tasks set forth in the job description and stated at the visa interview particularly in those cases where there are discrepancies between the duties set forth in the petition, the information supplied by the petitioner to the Medical Board and the information elicited at the visa interview. Nor is there any objection (if post has the resources to do so) to posts contacting the state medical authorities directly. However, if the job description requires consultation with and recommendations to the physicians in making diagnoses, and "assisting in the treatment" it appears to VO and INS that those functions may not be performed by "medical researchers" and the petitions should be returned to INS for renovation.

6. With regard to English competency, the ability to speak English is not/repeat not a requirement for approval of a petition or issuance of an H-1B visa. However, INS regulations require that an H-1B beneficiary must be able immediately to take up his/her position without further training. If an applicant cannot conduct the visa interview in English, unless it is determined that the applicant will be dealing in an environment in the medical practice where all work is conducted in his/her language, it appears to VO and INS that the requirement that an H-1B beneficiary be immediately able to take up his/her position without further training has not been met. Equally, if an applicant is unable to read and understand medical journals written in English it does not appear that the requirement in many of these petitions that the applicant will read and report on current medical literature can have been met. If post has questions as to an applicant's ability to understand, digest, and report on the medical literature, it may wish to seek the assistance of the panel physician or the RMO.

7. Additionally, with respect to the issue of an applicant's being immediately able to take up his/her position without further training, VO and INS do not consider that an applicant's lack of knowledge of the billing procedures (HMO or fee for services or insurance claims) of a particular medical office (which is propriety information and as such additional "on-the-job" training is allowed by INS) is sufficient to deny a visa.

8. VO is aware that applicants will most likely ultimately (and probably sooner rather than later) take the licensing examinations required to practice medicine in the U.S. However, that is not an issue that may be considered in the adjudication of these petitions so long as the applicant fully intends to take up the job being offered. Further, considering the elimination of the considerations of INA section 214(b) in H and L visas, neither should post consider the immigration status of family members, whether the position was obtained through the auspices of a friend or family member, the method in which the interview was conducted, why an American was not hired for the position and in particular, no note may be taken of any similar ethnicity between the petitioner and beneficiary. FYI: VO has contacted INS and Labor with respect to the EEO issues related to the hiring solely of members of a single nationality or ethnic group but was informed that these agencies' consideration of such issues are not within the scope of their authority under the current legislation.

9. In those instances where an applicant does not in posts opinion, meet the requirements for H-1B issuance, post should return the petition (along with a copy of this cable to INS with its findings carefully documented. If INS reaffirms the petition, the case must be processed to conclusion.

Christopher

27MM5E41