 J-1 Waivers and Physician Cases
International medical graduates (IMG's) have long been coming to the United States to obtain medical training. IMG's typically come to the United States through three visa programs, the J-1 visa, the O-1 visa and the H-1B visa. The most commonly used visa is the J-1 which has many implications, mainly the two year home residency requirement and the home residency waiver process. The H-1B visa is also commonly used for temporary employment and the National Interest Waiver process to obtain permanent resident status.
The J-1 Visa and the Home Residency Requirement
The J-1 Visa program is administered through the Educational Commission on Foreign Medical Graduates (ECFMG). The J-1 visa for physicians in training programs is valid for a maximum of seven (7) years. Extensions of the J can be obtained if the physician is within the maximum period of duration, even if they have a waiver application pending. However, once they have received confirmation from the State Department that they have received a favorable recommendation and BCIS has been notified, they are no longer eligible for an extension.
The J-1 visa for IMGs enrolling in a graduate medical education or training program, subjects the physician to the two-year home residency rule. This means that the exchange visitor physician must return to her country of last permanent residence or home country for a two-year period before she is eligible to acquire permanent residence or an H or L visa.
Obtaining a waiver of the two-year home residency requirement can be accomplished in several manners, however, many physicians find that sponsorship by an Interested Government Agency (IGA) is the best route. Please note that hardship waivers are available to IMGs, as well as persecution on account of the IMG's race, religion, or political opinion. No Objection waivers by the home government are not available to J-1 physicians.
curent job openings as well as customer service standards. If you are
looking for specific information
Waivers of the Home Residency Requirement by IGA Sponsorship
State Public Health Department: The Conrad 30 Program
Beginning in 1994, International Medical Graduates became eligible for waivers based upon sponsorship by a state public health department. The goal behind the program is to provide rural and other medically underserved areas with needed health care services. The international physician must provide health care services in the underserved area in exchange for a waiver of the two-year home residency requirement.
Each state's Department of Public Health (DPH) can sponsor up to 30 physicians a year for a waiver recommendation if the IMG agrees to provide medical care in areas designated as Medically Underserved Areas (MUA) or Health Professional Shortage Areas (HPSA). Individual states implement their programs and set their own guidelines and eligibility requirements.
The DPH reviews the application pool and once they have selected the physicians to be sponsored, it makes a request for a waiver to the US State Department. It is the US State Department that recommends a waiver to the US Citizenship and Immigration Services (CIS), the agency with the ultimate decision to grant the waiver, Once the CIS approves the waiver the physician may be granted a change of non-immigrant status from the J-1 to the H-1B, and J-2 dependants may apply for H-4.
There are several basic requirements needed to qualify for the Conrad waiver. The IMG must have entered as a J-1 or obtained J-1 status prior to 2004. Second, the physician must establish they have an offer for full-time employment of 40 hours a week for a period of three years in a designated shortage area. There are no restrictions on the type of health care facility except that the physician cannot sponsor herself as a solo practitioner. Another requirement is that the physician must be willing to begin employment within 90 days of receiving the waiver.
Each state's DPH sets the criteria used to determine which physicians will be sponsored and generally Internists, Pediatricians, Ob-Gyn's, and Psychiatrists receive better consideration than specialists. States that do consider specialist application do so on a case-by-case basis to determine if the particular community is in need of the specialist's services.
Applying for the H-1B
After the International Medical Graduate has successfully obtained a waiver of the two- year home residency requirement, she may have the employing facility apply for the H-1B visa. The standard H-1B eligibility criteria must be met, such as bona fide offer, notice requirements, and prevailing wage issues, in addition to a number of additional requirements specific to J-1 waiver physicians. The physician must have completed and passed all three steps of the USMLE and the facility must attest that it will notify the CIS if the physician is no longer employed.
Any additional hours of work over the 40 hours, for the same employer, but in a non-designated area will not affect the J waiver or H-1B application as long as standard H-1B procedures have been followed. However, moonlighting for a different employer is not permitted without a separate H-1B petition approval.
Change of Employers During IGA Service
An IMG fulfilling the three-year service in a HPSA/MUA as an H-1B only has limited opportunity to change her employment because extenuating circumstances must be established to change employers. Certain requirements must be met if an IMG were to try to establish extenuating circumstances. First, all IMG's must submit a new employment contract with another health care facility located in a designated underserved area for the balance of the three-year period. If the IMG is claiming extenuating circumstances based on hardship, she must establish that the hardship was beyond her control and was unforeseen. If closure of the medical facility is the basis behind the extenuating circumstances, then the IMG must establishing the closure of the facility. CIS will review files on a case-by-case basis with consideration of the special facts and a determination made as to whether the waiver should be affirmed for the new employer.
Obtaining Permanent Residence And National Interest Waivers
International Medical Graduates are subject to the same methods and regulations as all others who seek permanent resident status in the United States. They may pursue the traditional Labor Certification process as individuals with advanced degrees or they may take advantage of the National Interest Waiver process and bypass the recruitment of Labor Certification applications. However, with the National Interest Waiver, the IMG is eligible to sponsor herself for employment and is not required to have a petitioning employer.
There are three basic requirements that must be met to obtain a National Interest Waiver. First, the physician must agree to work full time in a health shortage area or for a VA. Second, a State Public Health Department or a federal agency must determine that the work is in the public benefit and interest. Third, the physician must work for a period of five years before they are eligible to adjust status.
The advantage in pursuing a National Interest Waiver petition compared to a standard Labor Certification filing is that the IMG is not required to stay with a particular employer. As long as the physician continues to provide health care services in a designated underserved area, they are fulfilling the terms of the National Interest Waiver. A second advantage is the common issue of avoiding the recruitment associated with Labor Certification. Primary care physicians may be more concerned with this issue because of the sheer number of primary care physicians available compared to specialists.
|
