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December
2008 Newsletter December 31, 2008 DEAR CLIENTS AND FRIENDS: This Newsletter concerns an unfolding change of policy on how the immigration authorities regard the MBBS Degree when processing immigration cases, which is a matter of great importance to many of our physician clients and their employers. ENCAPSULATED SUMMARY OF SITUATION Under a recent and highly alarming trend, U.S. Citizenship and Immigration Services (USCIS) has recurrently although not uniformly been denying permanent resident cases under the classification for “Advanced Degreed Professionals” (EB2) for International Medical Graduates holding MBBS Degrees. The rationale here is that the MBBS is a front-line, basic university degree credential so as to fall short of the post-baccalaureate standard required for EB2 benefits. In so doing, the immigration authorities have created an artificial distinction within physician immigration cases based on the system of medical education within the physician’s home country rather than on any disparity in professional knowledge and capability. While it would seem axiomatic for IMGs to merit recognition as “Advanced Degree Professionals,” given the universal recognition of Medicine as a profession requiring advanced education, training, and skills, USCIS has now relegated a certain class of physicians – i.e., those holding MBBS Degrees – to the immigration classification comprised of Bachelor Degree holders as well as skilled and unskilled labor (EB3). This development has injected an enormous level of uncertainty and disruption into permanent resident cases for MBBS Degree holders and threatens to add several years to the processing time of such cases owing to the long backlogs in the EB3 quota lines. In my opinion, this unprecedented development is unwarranted, but given its implications to many of our clients, I want to present a thorough discussion of this emerging issue and our approach to this situation. MEDICAL EDUCATION, CREDENTIALING, AND LICENSURE At the outset, let’s take a peek at the various mechanisms that exist to ensure that the medical profession meets high and exacting standards of excellence which, in part, are accomplished through the requirement that all physicians possess high professional qualifications, including the equivalent to an Advanced Degree. In fact, within the U.S. context, no profession is as heavily regulated and analyzed as medicine. After all, medical decisions carry far-reaching implications not only for the patients being treated, but also for our entire national welfare. It is for this reason that the medical profession is so heavily regulated by various oversight entities – to wit: various state and federal government agencies, oversight organizations within the medical profession, private philanthropic entities, and private commercial entities (that is, insurance companies). The ultimate objective here is to develop rigorous, far-reaching, and systematic quality control mechanisms to ensure the professional excellence of medical education and medical training, and the professional qualifications of individuals seeking to practice medicine in the United States. While this entire and complex quality control system is well beyond the scope of this Newsletter, suffice it to say that the public’s legitimate interest for ensuring high standards of medical practice are well served by an extensive accreditation system for medical education and graduate medical training, the licensure standards established by the states, rigorous credentialing standards established by the medical specialty boards, ongoing continuing medical education requirements, and the economic reality imposed by both a discerning public and the payers in ensuring quality medical practice. It is simply not an exaggeration to state that the United States maintains the most professional, sophisticated system of Allopathic Medicine in the world. This entire system ultimately is grounded on the physician workforce, which needs to meet exacting, rigorous standards of education, training, and professional capability, including what should be regarded as an advanced level of formal medical education that easily equates to an Advanced Degree in the U.S. educational system. MEDICAL PRACTICE BY INTERNATIONAL MEDICAL GRADUATES International Medical Graduates (IMGs) need to meet fully the professional practice standards governing the practice of medicine in the United States. At present, roughly 24% of the physician workforce is comprised of IMGs, which, by definition refer to graduates of medical schools that have not been accredited by the U.S. Department of Education. (Please note that such graduates could either be foreign nationals or U.S. citizens.) Obviously, IMGs do not possess an inherent right to practice medicine in the United States based upon their foreign degree; rather, they need (quite rightly) to meet all applicable professional medical practice standards that apply to their U.S. counterparts. Their level of professional ability to engage in programs of Graduate Medical Education (GME) as physicians-in-training is demonstrated through a certification issued by the Educational Commission on Foreign Medical Graduates (ECFMG), which is a private, nonprofit organization comprised of six major medical organizations. Within the immigration context, the ECFMG Certificate is the required credential for a physician seeking various visa benefits. To be certified by the ECFMG, a physician needs to establish his/her high level of medical competence through the following: 1) completion of an acceptable program of medical education credentials; 2) passage of a series of examinations establishing medical competence; 3) fluency in the English language; and 4) possession of the cultural orientation required to practice medicine in the country. Once a physician has been issued an ECFMG Certificate, he/she then becomes eligible to apply for admission to a U.S. Residency and/or Fellowship program as accredited by the Accreditation Council for Graduate Medical Education (ACGME). In short, an IMG needs to go through the same vetting and admission process as his/her U.S. counterparts seeking entry into a program of Graduate Medical Education (GME), which is a prerequisite for the attainment of a state medical license. The ACGME is a private, nonprofit council that evaluates and accredits GME programs in the United States. In essence, the ACGME establishes quality standards that govern institutions providing Residency and Clinical Fellowship training in a broad range of medical disciplines. At present, there are nearly 8,500 ACGME accredited residency programs in 126 specialties and subspecialties, serving over 107,000 medical trainees. In a sense, the ACGME accreditation process addresses both the institutional standards (i.e., training curriculum, scope of training, authorized medical programs, training/academic environment, etc.) and the required admissions standards for physician applicants. In its statement on “Mission, Vision and Values” as well as within its Glossary of Terms, the ACGME recurrently refers to its role in enhancing the quality of Graduate Medical Education provided to “Physicians.” While it does not specifically define the term “Physician,” probably owing to its commonly understood definition, the universal underlying definition refers to “a person who is legally qualified to practice medicine; doctor of medicine” (source: Random House Unabridged Dictionary: 2006), which by implication would include an Advanced Degree holder having supplemental, high-level professional training and experience. In short, an IMG’s pathway to practicing medicine in the United States starts with the successful completion of an advanced degree course in medical education that needs to be recognized by the ECFMG, acting pursuant to authorization granted by the U.S. Department of State, indicating the readiness of an IMG to engage in an accredited Residency or Fellowship program in the United States. Once these core credentials have been obtained, the IMG then needs to gain admission into a specific ACGME accredited program, which forms yet another prerequisite to the attainment of a state medical license and the subsequent practice of medicine in the United States. WHAT IS THE MBBS? In the U.S. system, a student first goes through a four-year liberal arts course of study and then enrolls in an advanced program of medical education culminating with the conferral of an M.D. degree. This credential then confers upon the degree holder the right to use the professional title of “Doctor.” But this two-tiered system of medical education is not the universal situation, as many countries inject from the outset a more focused, professional orientation into the university course of study so as to award a medical degree as a first-line medical credential. This does not in any way suggest that the level of medical knowledge is inferior; it simply means that the course of medical education is condensed into a single degree program through the elimination of a liberal arts curriculum that characterizes the U.S. system of higher education. The Bachelor of Medicine and Bachelor of Surgery, (or as it is commonly known, the MBBS) is a first-tier medical degree credential generally issued after a 5-6 year period of university-level education. This degree is the standard, recognized medical education credential in roughly 43 different countries, including India. The MBBS curriculum encompasses a general course of medical study; thereafter, an MBBS holder would then undertake an advanced course of study in a specific medical specialization, somewhat akin to a Residency or Clinical Fellowship within the U.S. system. The U.S. Department of Education administers the National Committee on Foreign Medical Education and Accreditation (NCFMEA). This organization is responsible for reviewing the standards utilized by foreign countries to accredit medical schools and to determine whether the standards are comparable to the accreditation standards utilized within the United States. In short, there is an established multi-tiered mechanism consisting of various review procedures administered by the federal government, the ECFMG, the specific ACGME accredited institution, and the state licensure provisions to ensure that an MBBS-holder possesses a satisfactory level of medical education that has provided the IMG with a level of medical knowledge at a commeasure level with those holding M.D. degrees. EMERGING SITUATION WITH THE MBBS AND IMMIGRATION ADJUDICATION STANDARDS As most readers of this Newsletter know, the U.S. system of employment-based immigration is arranged in a hierarchy of five tiers. Most physicians qualify under the Second Employment-based Preference Category (EB2), which has been established for the “Advanced Degree Aliens.” In contrast, the Third Employment-based Preference Category (EB3) covers foreign professionals holding the equivalent of a Bachelor Degree, as well as certain skilled and unskilled workers. Functionally, the difference between the EB2 and EB3 Preference Categories can be profound. Owing to the lower standards required for EB3 consideration, there is a substantially larger pool of applicants within the Third Preference classification, meaning that there is invariably a much longer backlog waiting period. At present, under the worldwide quota, there is a backlog of over three years in the EB3 quota lines; in contrast, the EB2 numbers are current. Even in the case of the two countries that generally oversubscribe their utilization of EB2, the difference is still significant. For India, the current backlog in the EB2 category is roughly five years, whereas the EB3 backlog is at present seven years. For China, the EB2 numbers are backlogged four years, whereas the EB3 numbers go back to June 2002. (Note: these numbers are readjusted on a monthly basis, so the figures appearing here are for orientation purposes only.) Traditionally, immigration cases for physicians have routinely been processed under the EB2 classification. As my favorite law professor would recurrently aver, Medicine, Theology, and Jurisprudence are the three most venerated professions within Western Civilization, and it would only seem logical to accord Second Preference processing as “Advanced Degree Aliens” to physicians, regardless of the format of their medical degree. But recently, there has been a disturbing, albeit irregular, trend within U.S. Citizenship and Immigration Services (USCIS) to deny EB2 benefits to holders of the MBBS, owing solely to the fact that this degree technically is a first-tier degree rather than an advanced degree, as defined as “any United States academic or professional degree or foreign equivalent degree above that of a baccalaureate.” There has been absolutely no imputation that MBBS-holders possess inferior or substandard medical knowledge and preparation; rather, the reality is simply that MBBS-holders have not gone through a general, liberal arts course of study prior to undertaking their medical degree programs. At present, a number of such denials have been appealed to the Administrative Appeals Office (AAO), which is the appellate body reviewing decisions issued by the various USCIS Regional Offices. Hopefully, the AAO will issue a decision recognizing that an MBBS either in its own right or when considered within the overall context of meeting high quality standards for the practice of medicine in the United States should be regarded as meriting approval under the EB2 classification. However, until we get such a decision, we are faced with a considerable degree of uncertainty on the processing timeline for IMG permanent resident cases. FORM VS SUBSTANCE: SO WHAT’S AT STAKE? At core, the issue of concern here is one of form vs. substance. As a mechanistic application of the law, it is true that an MBBS is a first-tier degree credential, which thereby does not meet the standard of being “above that of a baccalaureate.” But in substance, does this rationale truly reflect upon the spirit and the underlying policy of the law, which is to recognize that certain professions requiring sophisticated, advanced, and restrictive levels of education should be accorded somewhat more favorable treatment for immigration purposes? There is absolutely no question being raised as to the substandard professional and medical competence of MBBS holders in comparison to the norms of the profession. There is, in fact, ample documentary evidence attesting to the advanced professional capabilities of each and every immigration case filed for an MBBS-holder – to wit; an ECFMG Certificate; admission to an ACGME accredited program of Graduate Medical Education; passage of examinations establishing appropriate clinical medical competence; possession of a state medical license or an equivalent authorization to practice medicine (generally, some version of an institutional medical license), existing hiring standards by employers that would require an advanced degree, etc. In light of this systematic vetting of an IMG’s professional competence, it seems logical – in fact, axiomatic – that a licensed (or authorized) physician within the U.S. should be classified as an “Advanced Degree Alien” for EB2 processing purposes. OUR STRATEGIES AND THOUGHTS My own expectation is that this whole MBBS issue will soon get resolved favorably owing to the underlying absurdity of relegating a certain class of IMGs (i.e., those holding MBBS Degrees) to a special, unfavorable preference classification. Any such outcome would simply fly in the face of logic so as to create an unfounded distinction between equally qualified physician applicant pools based upon the fortuity of whether or not the medical education system in their home country occurs as a first-tier degree or only after the completion of a baccalaureate course of study. What our immigration laws are intended to do are to dispense benefits in full recognition of professional qualifications. A policy that would draw an artificial distinction based on a formal degree credential that is otherwise recognized fully by the medical establishment for medical practice privileges would seem to run contrary to logic and law. Nevertheless, given that there is substantial uncertainty and instability in the processing standards toward MBBS Degree holders, our policy is the following:
Each case is different, so we need to develop carefully crafted and fully communicated strategies that will best serve the immigration needs of our individual clients. Our overriding goal now is to adopt creative and realistic options for our clients given this unprecedented uncertainty in the treatment of an MBBS Degree credential, which, again, is the universally recognized document indicating the successful completion of a basic course of medical education. On a variety of levels, it is extremely important for our clientele to recognize the nuances and implications of this current situation and to explore fully with us their various strategy options. And above all, we want to assure our readership that we will appeal and otherwise resist strongly any actions by USCIS that would deny full and commensurate benefits to MBBS Degree holders who have been authorized to engage in the practice of medicine in the United States. In this season of hope and renewal, I wish you much peace. As always, please feel free to distribute this Newsletter to other interested recipients and by all means, please bring any questions or comments to our attention. It is always a pleasure to hear from those whom we serve. Cordially, ROBERT D. ARONSON This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates, P.A. |