The Immigration Prescription for J-1 Waiver Success

September 9, 2011

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After residency or fellowship training is completed, all J-1 physicians must return to home country for two years or obtain a waiver of this requirement before he or she can be employed in H-1B status or adjust to permanent residence ("green card"). For the J-1 neurology fellow who wishes to begin practicing medicine in the U.S. immediately after completing his fellowship, the two year foreign residency requirement imposed by the J-1 visa is obviously a significant drawback. Fortunately, there are ways of obtaining a waiver of this requirement ("J-1 Waiver") through government sponsorship.

J-1 waivers are available for immediate employment of neurologists after training, with certain conditions. Any government agency can sponsor J-1 waivers but the three most common interested government agency (IGA) waiver programs that will sponsor specialists like neurologists are:

  • Conrad 30 State Program (Conrad 30)
  • Department of Veterans Affairs (VA)
  • Delta Regional Authority (DRA)

The Conrad 30 Waiver

Created in 1994, the Conrad 30 Waiver program allows each state (plus Washington, D.C., Puerto Rico, Guam, and the U.S. Virgin Islands) to sponsor up to 30 physicians for J-1 waivers each year. To be eligible for a Conrad 30 waiver, the physician must agree to work for three years in a facility located in a HPSA or MUA. Also, states can use 10 of their 30 waiver slots for doctors employed at facilities not actually located in an underserved area (HPSA or MUA), as long as such facilities serve patients who live in an underserved area. These slots are called FLEX waivers. Physicians under the Conrad 30 waiver program must agree to begin work within 90 days of the USCIS approval of the waiver.

Each state administers its allotment of waivers and therefore, each state has its own requirements for waiver requests. In general, these policies require a three-year employment contract (usually without a non-compete clause), evidence of the employer's good faith attempts to recruit U.S. citizen physicians, and evidence that the facility is viable and located in a HPSA or MUA or is eligible for the FLEX waiver. Most states favor waiver requests to physicians who will practice primary care, which is usually defined as practice in internal medicine, pediatrics, family practice or obstetrics/gynecology, or general psychiatry. However, many states will grant waiver requests for specialty physicians, provided the HPSA or MUA has a sufficient need for such specialists.

The VA Waiver

The VA waiver is available to physicians coming to work in facilities run by the Veterans Administration. The VA waiver is not restricted to primary care physicians nor must the facility be located in a HPSA. However, the VA will only sponsor a foreign born physician for a J-1 waiver if her services are necessary for the continuation of a specific program and the VA's efforts to fill the position with a U.S. physician have failed. In that vain, the sponsoring VA facility must submit extensive documentation of national recruitment efforts for the 12 months prior to submission of the waiver application. In addition, the foreign born physician must sign a minimum one-year employment contract.

Please note that although the VA waiver only requires a one-year contract, the physician must practice with the VA for at least three years to comply with the USCIS waiver requirement.

Delta Regional Authority

The Delta Regional Authority (DRA) is a federal-state partnership serving a 240-county/parish area in an eight-state region. Led by a Federal Co-Chairman and the governors of each participating state, the DRA is designed to remedy severe and chronic economic distress by stimulating economic development and fostering partnerships that will have a positive impact on the region's economy. The DRA waiver requires the foreign born physician to practice at least 40 hours per week as a clinical care physician for a minimum period of three years at a health professional shortage area (HPSA) or medically underserved area (MUA) facility located in the Delta region. The eight states included in the region are Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. The specific counties in this state that are covered by the DRA can be found here.

J-1 Waiver Obligations

There are many conditions and obligations attached to the J-1 waiver program for the physician and employing medical facility. Some of them are:

  • The physician must work in H-1B status for minimum of three years as an employee, not independent contractor, of employing medical facility.
  • The physician cannot change employers for three years unless he or she proves hardship (extenuating circumstances beyond his or her control).
  • The physician cannot complete permanent residence (green card) process until three-year waiver service is completed.
  • The physician and employer must report to state or federal agency periodically.
  • The physician cannot "moonlight" unless the part-time employer files concurrent H-1B petition.

J-1 Waiver Procedures

Regardless of which federal or state agency sponsors the waiver request, the application procedures are generally the same. Once the physician obtains an employment contract with a sponsoring employer, she should apply for a waiver review file number from the Department of State. This is the tracking number used to identify the physician's waiver request file. The physician obtains a file number by completing a waiver review application and paying a fee to the DOS.

Next, the sponsoring employer and the physician must submit a waiver application to the IGA, providing the documents required by the particular IGA's policy. The IGA will then review the waiver application. If the IGA agrees that the physician's employment is in the public interest, it will send a waiver request to the DOS. However, the IGA will not be able to forward the request to the DOS without the waiver review file number. This is why it is so important for the physician to apply for this file number as early as possible because processing time for this application may be up to eight weeks.

Once the DOS receives the state or federal waiver request, it will review the request for compliance with federal immigration law. The DOS will also conduct a security check on the applicant physician. In nearly all cases, the DOS will approve the waiver and forward its recommendation for a waiver to the USCIS for final approval.

The USCIS is the only agency with the authority to approve a waiver. However, it will not approve a waiver without the DOS recommendation. Upon receipt of the DOS waiver recommendation, the USCIS will process a Form I-612 waiver application. After processing the application, the USCIS will issue an approval of the two-year foreign residency requirement waiver. The approval notice, commonly called the I-612 approval, will describe the terms and requirements of the waiver so that the physician is aware of her obligations.

Losing the IGA Waiver

If a physician does not comply with the requirements of an IGA waiver, she will become subject to the two-year foreign residency requirement. To avoid this fate, the physician must prove to the USCIS that she cannot continue employment with the sponsoring facility because of "extenuating circumstances" beyond her control, such as closure of the sponsoring facility or hardship to the physician. In addition, the physician must agree to work for another employer in an underserved area (HPSA or MUA). Physician who received FLEX waivers must also agree to work in an underserved area if changing employment midstream.

There is no laundry list of the facts that constitute hardship to the physician; however, the USCIS has approved a change of employment to another facility in cases where the original sponsoring employer:

  • Terminated the physician's employment;
  • Failed to pay the physician's agreed upon salary; or
  • Attempted to force the physician to engage in unethical conduct.

Prescription for Success

Neurology fellows who seek a J-1 waiver job should take the following steps to ensure a timely and successful J-1 waiver application:

  • Start job search immediately one year or earlier before completion of your fellowship so that you have sufficient time to submit a J-1 waiver application to Conrad 30 programs that accept applications in October.
  • Search for employers located in underserved areas (HPSA/MUA) who agree to a three-year contract and no non-compete clause.
  • Execute your employment contact by September 1 of your last year of training so you can apply for the J-1 waiver on October 1.
  • Apply for medical licensing in the state you will work as early as possible.
  • Hire an experienced immigration attorney to guide you through the process.

Ann Massey Badmus will present a webinar during Neurology Career Week at 12noon (CST) on Monday, October 10.

Facts of individual situations differ and immigration law changes frequently. The information provided here is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational purposes and is not offered as, nor does it constitute legal advice. You should not act or rely upon the information in this article without seeking the advice of an attorney. To consult with an experienced immigration attorney to get the right diagnosis your specific situation, you are invited to contact Ann Massey Badmus at annbadmus@badmuslaw.com, www.badmuslaw.com.