IMMIGRATION LAW WEEKLY

October 7, 1996

My wife and I are physicians in the midst of our residency. I am planning to pursue further post-graduate training following completion of my Internal Medicine residency. My wife will be a fully-certified pediatrician (canadian and american certification), and would begin employment. Obviously I can obtain an H1-B visa. Can my wife open her own office, hire employees, etc? What visa category would she qualify for? Would our visa applications need to be tied together in some way, or filed apart?

Your wife would be able to open her own clinic under E-2 status if she meets the normal requirements for E-2 eligibility which are discussed here. I have already discussed this option in my article on physicians but I will provide some additional detail in this bulletin.

A Canadian physician may technically qualify as an E-2 principal investor for the purpose of setting up his or her own medical practice in the United States. This position was confirmed in a letter dated January 25, 1994 from John K. Schlosser of the U.S.consulate in Toronto. While Mr. Schlosser is no longer in charge of adjudicating E-2 visas in Toronto, it should still apply. The text of the letter is reproduced here.

A Canadian physician seeking E-2 status must show that she has either made a substantial investment or is actively in the process of making a substantial investment in a U.S. business. Substantiality is determined by considering the amount of the qualifying investment relative to the total cost of the existing or proposed business. The funds must be irrevocably committed and personally at risk in order to qualify. In addition, the investment must not be marginal. A Canadian physician must show either that the investment will expand employment in the locality of the business or that she has substantial income from other sources to support herself.

The Canadian physician must be responsible for the development and direction of the investment. Where direct patient care will be involved, she must show that she has a licence to practice medicine in the state of intended employment. If you wife is in fact licensed in the state where she intends to practice, she meets this requirement.

The only other options for self-employed are as an alien of extraordinary ability under the first preference employment-based category or an immigrant investor under the fifth preference employment-based category. However, you have not provided any evidence to suggest that your wife would qualify under either of these options.

As your wife's status would have nothing to do with your H-1B for post-graduate medical training, there is no need to file your cases at the same time.