J-1 Waivers for Physicians
J-1 physicians who have entered the United States through sponsorship form Educational Commission on Foreign Medical Graduates (ECFMG) for clinical training (residency and fellowship training) are subject to a two year home residence requirement. These physicians are not permitted to change to H or L status, or apply for a green card, until they have returned to their home country for a period of two years, or until they have been granted a waiver of the two year home residence requirement. Waivers can be very difficult to obtain. Even doctors who marry a US Citizen cannot secure a US Immigrant Visa (“green card”) without a waiver, or satisfying the two year requirement.
The waivers available to J-1 physicians include interested government agency waivers, persecution waivers and hardship waivers.
Clark Hill’s Immigration Practice Group has extensive expertise with J-1 and H-1B Physicians, J-1 waivers and green cards for Physicians. Please hit the “contact us” link below if you would like a free publication.
Interested government agency (IGA) waivers can be granted to those J-1 physicians who are sponsored by an employer based on a commitment to work for at least three years in a medically under-served area of the US. There are several agencies willing to support a J-1 waiver, including the Department of Veterans Affairs (VA), the Appalachian Rural Commission (ARC); and the Department of Health and Human Services (HHS), Delta Regional Authority. In addition, each state is permitted to grant up to thirty waivers each year (Conrad State 30 Program).
In order to be granted a waiver, the employer and the physician must comply with several requirements. They must demonstrate that they have entered into an employment contract, confirming that the physician will work for 40 hours per week, for a minimum of three years. Employers must be able to show that they have engaged in recruitment to search for minimally qualified US workers. The employer must also demonstrate that the work will take place in an area that has been designated by HHS as medically under-served, with two exceptions. First, a waiver sponsored by the VA does not require the work to be in an under-served area. Second, each state, through its Conrad State 30 Program, is permitted to grant up to five waivers for work that is not located in an under-served area, at the states' discretion. The waiver is initially filed with the interested government agency; then forwarded to the US Department of State, and finally to the US Citizenship and Immigration Services (USCIS). Processing times vary from 4-16 weeks. It is important to note that timing is a concern, especially if an employer is processing the J-1 waiver through the Conrad State 30 Program. Many states have established set application periods. Employers and Physicians will need to be aware of these deadlines in states that receive large numbers of J-1 waiver applications.
Hardship waivers can be granted to those J-1 physicians who are able to demonstrate extreme hardship to a qualifying relative, including a US citizen or lawful permanent resident spouse and/or child. He/she must show that the qualifying relative would suffer extreme hardship both if the J-1 physician returned to his/her home country without the qualifying relative for two years, and that the qualifying relative would suffer extreme hardship if he/she returned to the J-1 physician's home country for two years. Extreme hardship can be demonstrated through medical, psychological, financial, and educational means. The waiver is initially filed with USCIS. If USCIS agrees that the qualifying relative would suffer extreme hardship if the two year home residence requirement is enforced, the waiver is forwarded to the US Department of State for their opinion. If the US Department of State also determines that extreme hardship exists, the waiver decision is sent to USCIS, where the waiver can be granted.
As an alternative, a J-1 physician is also permitted to apply for an O-1 visa see our page regarding O-1 visa requirements. Note that a J-1 physician is not permitted to change his/her status from J-1 to O-1 in the US. The O-1 petition must first be approved by a USCIS Regional Service Center, and then the J-1 physician must apply for the O-1 visa at a US Consulate abroad. Also, note that is the J-1 physician is able to obtain an O-1 visa, he/she still remains subject to the two year home residence requirement.