Physicians:
J-1 Waivers for Foreign Physicians
The J-1 visa
continues to be the source of many problems for foreign physicians
attempting to permanently relocate to the United States. On the
surface, the J-1 visa is an attractive visa because it is easy to
obtain and the physician’s spouse is granted work authorization.
However, once a J-1 visa is issued the foreign physician is subject
to a harsh two-year foreign residence requirement. This means that
the foreign physician must return to his or her last country of
residence for two years prior to receiving an H-1B
visa or a green card. The foreign physician is not
permitted to change status to any other immigration category even
if the physician's spouse is a United States citizen, unless a waiver
is issued.
In most cases
a foreign physician who is subject to the two-year foreign residence
requirement will not obtain a waiver because J-1 waivers for foreign
physicians are only granted in the following situations:
- On the basis
of persecution should the foreign physician be required to return
home.
- Upon establishing
that the foreign physician’s U.S. citizen spouse and/or children
will suffer extreme hardship should the physician be required
to return home.
- Based on
a recommendation from an Interested Government Agency (IGA)
The most commonly
used of the three waiver options is an IGA recommendation but even
this is difficult to obtain. It is unlikely that an IGA waiver will
be issued unless the foreign physician will be employed by a federal
government agency such as Veterans Affairs, or serving a Medically
Underserved Area (MUA). Therefore, it is advisable for the foreign
physician to consider other options such as an employment based
green card or the H-1B visa prior to obtaining a J-1 visa
in an attempt to avoid the harsh consequences of the two year foreign
residence requirement. In some cases a foreign physician will not
have an option and will require a J-1 visa to participate in a residency
or fellowship program but this should only be applied for once all
other options have been reviewed.
The most common
method used to obtain a J-1 waiver for a foreign physician is the
Interested Government Agency (IGA) request. Currently, there
are four different types of IGA waivers available:
1. Appalachian
Regional Commission Waivers
2. Veterans Administration Waivers
3. Conrad State 30 Waivers
4. Health and Human Services Waivers
While each of
the IGA waiver programs differ to some degree there are some
commonly used terms that can be found in each program. For example,
in each program the foreign physician must be working in a 'Health
Professional Shortage Area' (HPSA). To determine if the employer
is located in a HPSA the government published Federal Register should
be consulted. Secondly, all agencies require proof of substantial
recruitment efforts for U.S. physicians by the employer prior to
hiring the foreign physician. Thirdly, in all but the VA waiver,
the foreign physician must be providing 'primary care', although
each agency has defined this term somewhat differently. Lastly,
all agencies require fulfillment of a long-term employment contract
by the foreign physician, typically a minimum of three years. These
terms are common to all J-1 waiver applications and should be clearly
understood.
It is important to understand that once an IGA waiver has
been granted the foreign physician must obtain an H-1B visa in order
to legally work in the United States. In 1996 a law came into effect
that prohibits a foreign physician on a J-1 visa from adjusting
status to that of a green card holder, even if a J-1 waiver has
been granted. Under the provisions of this law a foreign physician
who obtains a J-1 waiver from an Interested Government Agency must
change status to an H-1B nonimmigrant visa and remain in that status
with the sponsoring employer for a period of no less than three
years. At the end of the three-year period the foreign physician
would then be permitted to apply for permanent resident status (i.e.
a green card). The way of adjusting status earlier is through the
filing of a national interest waiver. Even marriage to a
United States citizen does not relieve the foreign physician from
the need to obtain a waiver prior to adjusting status to that of
a permanent resident.
There are certain
instances whereby a foreign physician may obtain a visa to remain
in the United States without obtaining a J-1 waiver. Please refer
the O
Visa, E
Visa and TN
Visa links for more information on these options.
If you would
like to learn more about the immigration options available to foreign
physicians please send a request to us at:
physicians@usimmigrationlaw.net
or contact:
Leibl &
Kirkwood
12865
Point Del Mar, Suite 190
Del
Mar, CA 92014, USA
Tel. (858)
481-5211
Fax. (858) 481-7271
questions@usimmigrationlaw.net
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