Foreign national physicians in J-1 status for purposes of graduate medical education and training (GME) are subject to a two-year home residency requirement. This requirement is set forth in Section 212(e) of the Immigration and Nationality Act and is generally referred to as ‘being subject’ to the ‘two year rule’. Physicians subject to the two year rule who wish to remain in the U.S. following completion of their training program have limited options to do so. These physicians are barred from receiving an H, L, or K nonimmigrant visa or permanent residency (green card); that is unless they either fulfill the two year obligation or receive a ‘J-1 waiver’ releasing them from this obligation.
While the two year rule is not solely a physician issue, J-1 physicians in the U.S. for GME are a distinct class in which everyone is subject. J-1 physicians are eligible for waivers through the same avenues available to all other subject J-1s, except the ‘no objection’ statement. These avenues include waivers based on persecution, based on exceptional hardship to the physician’s U.S. citizen or permanent resident spouse or child, or based on the favorable recommendation of an interested U.S. government agency, or “IGA”. It is this latter category, actually a subset of this latter category, which is the subject of this article.
Within the rubric of the IGA, there are a number of waiver options that are solely for physicians. The underlying objective of these waivers is to recruit physicians into communities where medical services are in short supply. Physicians benefitting from these waivers must to providing clinical medical services to a specific community for at least three years, and are not eligible for permanent residency until they have completed the full three years. IGA programs aimed at bringing physicians into underserved communities include the Delta Regional Authority (DRA), the Appalachian Regional Commission (ARC), the Department of Veterans Affairs (VA), the Department of Health & Human Services (HHS), and the congressionally mandated waivers through a State Department of Public Health.
A State Department of Public Health is not a federal government agency, such that it would not qualify under INA §212(e)’s definition of an IGA, which is a “United States Government Agency.” Rather, states were authorized to recommend up to thirty physician waivers a year through legislation led by Senator Kent Conrad (D-ND). This became known as the “Conrad State 30 Program.” Pursuant to the Conrad State 30 Program, every state gets the same thirty waivers, regardless of size or specific needs. Moreover, participation in the State 30 waiver program is solely at the discretion of the state, and states have broad discretion to determine how best to use, or not to use, these thirty waivers. With fifty different states each with varying needs and priorities, this has resulted in a lot of variation among the State 30 programs.
This article will examine the variations on a theme that comprise the Conrad State 30 Program, which includes more than fifty different approaches. It will note common trends and highlight significant differences, and provide a sampling of these variances. It will also comment on best practices for working with the program administrator, and recommendations for preparing the application.
COMMONALITES AND VARIANCES AMONG STATE 30 PROGRAMS
The only statutory requirements for the Conrad State 30 are as follows:
- Physician must agree to begin employment within 90 days of receiving the waiver
- Physician must commit to not less than three years service
- Physician must serve patients residing in federally designated underserved areas
- Physician must agree to full time employment
If the request is to practice specialty medicine, a shortage of that specialty in the requesting community must be documented.
Other than these fairly general requirements, states are at liberty to decide how best to use their 30 waivers. While there are common themes among each program, the actual implementation of these requirements tends to vary quite a bit. Most state departments of public health do post their program requirements on their website, but often the requirements are stated in very general terms. After reviewing the posted requirements, it is a good practice to call the Program Administrator to clarify the nature of the requirements.
The Alphabet Soup of Qualifying Locations: HPSA, MUA, & FLEX
Probably the biggest area of divergence among the State 30 programs is their interpretation of the statutory requirement to “serve patients residing in federally designated underserved areas.” The Department of Health and Human Services (HHS) Health Resources and Services Administration (HRSA) Shortage Designation Branch is tasked with developing shortage designation criteria and using these criteria to decide if a geographic area, population group or facility is a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA) or Population (MUP).
HPSA & MUA/P
Generally speaking, an HPSA is a relatively straightforward numbers calculation. It is determined based on the ratio of the service population to the number of physicians in the community. On the other hand, an MUA is determined by weighing a variety of factors, including the service population’s age, educational level, and income level, within a geographic area; an MUP uses these same factors but narrows the scope to a specific group of persons within a geographic area. While it would seem that an MUA/MUP designation would provide a more accurate reflection of the needs of a community, in practice, the MUA/MUP designations are updated much less frequently than the HPSA designations. As a result, most states prioritize HPSAs over MUA/MUPs, and some states, including Maryland, Michigan, Missouri, New Jersey, North Carolina, and Utah, will only recommend a waiver if the site is located in a HPSA. Interestingly, New Mexico and Texas rely on a HPSA designation for primary care waivers, and MUA/MUP designations for specialists.
The following site demonstrates whether an address is located in a HPSA or MUA/P: http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx. Determining that the area of intended employment is designated as an HPSA or MUA/MUP is only the first step. Many areas listed on the database may have been determined by the state to be “saturated” or “fully served.” This means that despite the designation, it may not be a “qualifying” site for J-1 waiver purposes. Thus, before preparing and filing the waiver application, the appropriate state should be contacted to determine the viability of a proposed site.
Whereas the federal IGA programs can only recommend waivers if the physician agrees to work in a federally designated area (or at a Veteran’s Administration Facility), the State 30 programs may recommend waivers for physicians who are serving patients from underserved areas, even though the practice site itself is not geographically located within a federally designated area. The provision giving states this flexibility was added in 2004, and is referred to as the “FLEX” provision. Initially, states could use up to five of the thirty waiver slots as “FLEX” slots, so the provision was referred to as “FLEX 5”. In 2008, the number increased to ten, so the provision is now the “FLEX 10.”
The limit on the number of slots that states may use each year for FLEX is really the only limit on how they apply this provision. Other than the numerical limit, the statutory language authorizing this provision simply indicates that the physician must “serve patients residing in federally designated underserved areas.” States have interpreted this in a myriad of different ways, and as a result, there is a wide range of practices implementing FLEX. For example, Arkansas and Louisiana require evidence that a minimum of 30% of patients reside in a HPSA/MUA (Louisiana will also accept proof that the practice site is within a thirty minute drive to HPSA/MUA locations); Illinois requires a minimum of 51%; Pennsylvania requires a minimum of 20% (30% if from low income HPSA/MUA); Mississippi requires 25%; Tennessee requires 50%; North Carolina requires 80%; and Wisconsin requires 40% for waivers involving specialists. Other states are less specific. New Mexico simply requires “a substantial amount of care” and California requires a “significant percentage.”
The disparate interpretation of “serving patients residing in” is just one of the many variations among the states. There is also a broad range of considerations regarding how many FLEX slots a state will consider, and at what point during the fiscal year they will accept FLEX applications. On one end are states that do not take advantage of FLEX at all. These include Arizona, Connecticut, Idaho, and Missouri. On the other end are states that will readily use all ten slots. This is a majority of states, including Arkansas, Colorado, Georgia, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, Nebraska, New Mexico, New York, Pennsylvania, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming. The remaining states self-impose a maximum of five FLEX slots per fiscal year.
Among those states that are willing to use all ten slots, Arkansas, Pennsylvania, Texas, and Washington will only consider FLEX slots in the second half of the fiscal year (although Texas will consider using them earlier in the year if it is to provide serves at a Texas State Hospital or State Supported Living Center); South Dakota reserves five for urban areas and five for non-urban areas; Mississippi reserves all ten for specialists; DC reserves five specifically for specialist in cancer, heart disease, cerebrovascular disease, HIV/AIDS, and anesthesiology. Among those that have a self imposed limit of five, and Tennessee requires that they be used in affiliation with hospitals.
Policies regarding the use of FLEX slots are constantly evolving, so if the waiver request is for a FLEX slot, it is important to verify the current state requirements. Moreover, for states that require proof that a certain percentage of the patient population resides in a HPSA/MUA, documentation can be fairly burdensome. States often want an analysis of billing zip codes and the corresponding HPSA/MUA identification number to document the 25%, 30%, 51% – as the case may be. This is not only time consuming, but is often difficult to obtain as employers are reluctant to provide the information or to provide the data to allow you to perform the analysis. Therefore, if the application is for a FLEX slot, the documentary requirements should be made very clear to the employer at the outset.
Nearly all states require some indication that the employer tried and failed to recruit U.S. physicians. However, the extent of the recruitment and the types of evidence required to document the efforts varies significantly from state to state. For example, Alabama, Idaho, Mississippi and Kentucky require ads to be placed on the national, state, and regional level, and also require that positions are listed with the in-state medical schools and residency programs. While not requiring the three tiered approach of national, state, and regional ads, Louisiana, Maryland, Ohio, and Idaho all require proof of posting with the in-state residency programs and medical schools. Maine and Massachusetts are more general in their advertising requirements, but also want information on how long the position was vacant and the plans to retain the physician if the waiver is granted. Similarly, Arizona, Massachusetts, Mississippi, and Ohio also want a list of physicians who applied for the position, and the reasons why they were not hired.
Colorado, District of Columbia, Georgia, Hawaii, Indiana, Iowa, Kansas, Montana, New Hampshire, New York, Oregon Pennsylvania, Tennessee, Virginia, Washington, West Virginia more generally require proof of efforts within the six months prior to the application. Utah wants to see at least one year of efforts, while Connecticut simply wants evidence that efforts have failed. Other states require a “good faith” effort to recruit physicians, and will accept the employer’s summary of these efforts. These include South Carolina, Rhode Island, New Mexico, Minnesota, Kentucky, Illinois, and Arkansas. Alaska, Texas, Michigan, North Carolina, Oklahoma, and Vermont do not require any recruitment.
Understanding the amount and breadth of recruitment a state requires is essential to determining if a particular waiver opportunity is a viable option. For example, if a state requires a full six months of advertising, there may not be sufficient time to run the required ads if it is already March and the J-1 physician’s status expires on June 30. This is presuming the employer has not already run appropriate ads. However, it may be that the requirement is not a full six months of ads, but rather some documentation of recruitment efforts within the last 6 months – a very different requirement, and one that is not always clear from the program requirements listed on a state’s website.
Primary Care versus Specialists
When the Conrad State 30 Program was originally enacted in 1994, very few states considered waiver recommendations on behalf of specialists. Rather, the focus was predominantly on bringing primary care physicians into the community. Primary care medicine is generally defined as internal medicine, family medicine, pediatrics, obstetrics/gynecology, and in some programs, psychiatry. The definition of primary care varies from state to state. For example, in Florida, it also includes geriatrics, infectious disease, and physiatrist; Arkansas, Nevada, and Washington also include geriatrics; in North Dakota and Iowa it also includes general surgery; and in Rhode Island, it also includes neurology and anesthesiology. North Dakota specifically excludes obstetrics/gynecology. Interestingly, several states, including Alaska, Arkansas, Connecticut, Minnesota, Nebraska, New Mexico, South Dakota, and Wisconsin do not distinguish between primary care physicians and specialists.
Over the last sixteen years, the attitude towards specialist waivers has changed drastically. At present, all but Idaho and New Jersey will consider at least some waiver recommendations on behalf of specialists. In fact, several states reported recommending more waivers for specialists than primary care in fiscal year (FY) 2009. These include Alabama, Delaware, Georgia, Kansas, Montana, Nebraska, New Mexico, South Dakota, and Wisconsin.
Numerical Limit on Specialists
As with everything else, each state has different rules regarding how many specialists they will recommend per fiscal year, at what point during the fiscal year they will recommend a specialist, and the type and amount of additional documentation required to support a specialist application. Some states will only accept applications for a specialist waiver several months into the fiscal year, giving primary care physicians the first opportunity to apply. Alabama accepts specialist waivers in the second quarter of the fiscal year; Maryland, Pennsylvania, and California will accept specialists if slots remain open towards the end of the fiscal year; and Kansas will use fifteen slots, released at intervals during the year.
Several states have a fixed limit on the number of specialist waivers they will recommend each year. Alabama is fifteen, and no more than two from the same employer; Arizona and Hawaii are both seven; Illinois is twelve; Mississippi is ten; and Tennessee is nine. Some states only restrict the number in the first half of the fiscal year, releasing primary care slots to specialists in the second half. For example, Florida reserves five slots for specialists, but will allow specialists to use any slots remaining at the end of the application period. Georgia, Louisiana, Kentucky, Oregon, and Washington are similar. New York, Ohio, Rhode Island, Vermont, Wisconsin, Wyoming have no specific limit on the number of specialists they will recommend.
Documenting Need for Specialists
Specialist waivers are one of the few issues specifically addressed by the statute. According to the statute, “in the case of a request for a waiver…to practice specialty medicine… the request shall demonstrate, based on criteria established by the agency, that there is a shortage of health care professionals able to provide services in the appropriate medical specialty to the patients who will be served” (emphasis added). So while federal law suggests that waivers involving specialists require additional documentation, it leaves entirely to the states what, if anything, this additional documentation should constitute.
As discussed above, there are several states that do not distinguish between waivers for specialists and those for primary care physicians. Ostensibly, these states consider that the statutory requirement to demonstrate the need for specialists is encompassed in their general requirements for all waiver submissions. A few states prioritize specific types of specialists based on the healthcare goals of the state or local community. Arizona is currently seeking gastroenterologists in support of its “Arizona Fit at Fifty HealthCheck Colorectal Screening Program”. DC seeks specialists in areas relating to its five leading cause of death: heart disease, cancer, cerebrovascular disease, HIV/AIDS, influence and pneumonia. Similarly, Ohio prioritizes specialists that address the leading causes of mortality in an area.
Among those states that distinguish specialists from primary care, there are some like California and Florida that have just a stated requirement that the employer demonstrate the need for the specialty at the worksite, and there are others like Pennsylvania, Delaware, and Louisiana that have a laundry list of criteria for specialists. This laundry list includes information and documentation regarding the number of such specialists already in the community, whether those specialists accept Medicaid, whether there is an excessive wait time to see a specialist, who is comprised in the ‘at risk’ population, what types of conditions are prevalent in the community to warrant such a specialist, et cetera. Yet whether the state clearly enumerates the points to be addressed, or whether it more generally requires demonstrating the need, most states do want a detailed explanation regarding the services to be provided and how these services fulfill specific needs of the community.
Preparing a waiver application for a specialist should not be confused with preparing a petition for an O-1 visa. Unlike the O-1, which is primarily about the physician, the J-1 waiver is about the needs of the community. While the J-1 specialist may bring unique expertise to the community, that is usually not dispositive and is often only tangentially relevant. For example, when preparing a waiver petition on behalf of a cardiothoracic surgeon with rare expertise in mitral valve repair, the focus should not be on the surgeon’s unique skills, but rather on how access to the procedure will benefit the community. How will it reduce health care costs as well as morbidity and mortality rates? What percent of patients needing this procedure are uninsured or dependent on Medicaid?
Other factors to consider in preparing a specialist waiver include the existing options for patients needing such a specialist, and why these options may not be sufficient? How has the demand for the specialty been handled in the past and has the situation changed? Detail the specific types of conditions managed or procedures performed and provide statistics regarding the extent of the condition in the community. Is there a high rate of diabetes, or kidney disease, or asthma, or chronic heart failure? Provide information on the most cost-effective methods of treatment, and how bringing in a specialist will reduce the burden on health care resources. What about the community demographics? What is the median income and educational level? What percentage of the community lives below the poverty line? While this information may not be specifically required by the state program, it is often helpful to provide the context for the State 30 program to appreciate the need for the specialist.
PREPARING THE APPLICATION
The above section addresses a number of the more substantive commonalities and variances among the various State 30 Programs, but there are also a number of procedural differences. Each state is at liberty to make its own rules regarding filing fees, processing times, application periods, deadlines, use of specific forms, and whether to us all thirty slots or none at all. Arizona, Arkansas, California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nevada, New Mexico, New York, and Ohio all have specific timeframes during which they will accept applications. Other states review waivers on a first come, first serve basis.
With all of the differences among state programs, and considering that states frequently change their requirements from year to year, it is important to verify the state’s requirements before moving forward. While most states post their State 30 Program requirements on the internet, checking online should only be the first step. It is usually worth a phone call to the program administrator to determine if slots are still available, if deadlines have been extended, if the employer has already done sufficient recruitment, or any other details that may be helpful but not apparent from the website.
The core documents required by most State 30 programs include some permutation of the following:
- DS-3035/Third Party Bar Code
- Letter from the sponsoring health facility employer
- Valid 3 Year contract
- Proof that the facility is located in a HPSA/MUA or meets the requirements for a FLEX slot
- Proof of recruitment efforts
- IMG’s Curriculum Vitae and credentials
- IMG’s immigration history
- Other commonly required documents
- Filing fees
- Community support letters
- Sliding fee scale
- Prevailing Wage Determination
- Site application and other state specific forms
Completing the DS-3035
The waiver application is filed directly with the state in which the J-1 physician will be employed. The application is reviewed by the program administrator within the State Department of Public Health, and if favorable, a recommendation in support of the waiver is submitted to the Waiver Review Division of the United States Department of State (DOS). The DOS makes its recommendation to the United States Citizenship and Immigration Services (USCIS), which will ultimately issue the waiver. To facilitate transmission of the waiver recommendation to DOS, states require waiver applications to include the DOS case number.
A DOS case number can be obtained by completing the online DS-3035 application at http://travel.state.gov/visa/temp/info/info_1296.html. Once submitted online, the DS-3035 and supplemental documents will need to be printed, signed, and posted to DOS with the filing fees and a G-28. A “third party bar code” will also be generated, which will be submitted directly to the state with the other State 30 application materials. This is used as a routing sheet between the State Department of Public Health and the DOS.
Employer Support Letter
While the points to be addressed in the employer support letter may vary, at a minimum, most states require the following:
- Request the state department of public health to act as an interested government agency and recommend a waiver on behalf of the J-1 physician;
- Description of health care facility and nature of services provided;
- Location where physician will be employed, and confirmation that it is in a HPSA/MUA or qualifies for FLEX;
- Proposed responsibilities of J-1 physician;
- Summary of efforts to recruit a qualified U.S. physician;
- J-1 physician’s qualifications; and
- Impact on the community if the waiver is denied.
If the waiver application is on behalf of a specialist, the employer letter should also address the factors noted in the section above, Primary Care versus Specialists, Documenting Need for Specialists.
Valid 3 Year Contract
Every State 30 waiver application requires a contractual agreement between the employer and the J-1 physician. The statute dictates that the contract must be for full time employment for at least three years; that the physician must agree to begin employment within 90 days of receiving the waiver; and must agree to serve patients residing in federally designated areas. Many State 30 programs also require certain terms and prohibit others. The most common required are that “physician will work at least 40 hours per week excluding on call and travel time” and a liquidated damages clause, and the most common excluded terms are “non-compete” clauses and termination other than for cause. Definitely check with the state regarding such requirements at the outset, and make sure that the employer is willing to provide a three year contract, and to include or exclude the necessary terms.
The following is an outline of the basic terms that satisfy most State 30 programs:
- Physician will work at least 40 hours per week, excluding on call and travel time, in the field of [provide practice area], at [please exact practice site].
- The term of employment will begin within 90 days of receiving the waiver as long as H-1B status is approved, and continue for a minimum of three years.
- Salary will be a total of $——-/yr.
- Employer will be responsible for malpractice insurance, as well as medical and dental insurance.
- Physician is permitted ___ vacation days; ___ sick leave days, and ____ days for CME.
- The parties have entered into this agreement in good faith and acknowledge their respective ethical and legal obligations to fulfill this agreement until its expiration date. The parties further agree that neither will terminate this agreement in whole or part before its expiration, with the exception of good cause.
- Physician will practice on a full-time basis providing patient care in Health Professional Shortage Areas and Medically Underserved Areas (or to patients residing in these locations) and to focus medical services on the indigent community. Physician agrees to see all patients regardless of their ability to pay.
- Physician agrees to the requirements set forth in Section 214(l) of the Immigration and Nationality Act.
HPSA/MUA or FLEX Documentation
If the practice site is located in a HPSA or MUA, it is sufficient to include the print out from http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx. If it is for a FLEX slot, what constitutes sufficient documentation varies considerably state by state. As detailed above, several states require evidence that a specific percentage of patients reside in qualifying underserved areas. This usually involves a detailed breakdown of total number of patients, patient zip codes, and corresponding HPSA/MUA designation (if any) to determine if the requisite percentage is met. In practice, obtaining and organizing this information is a daunting task, and impossible to complete without the cooperation of the employer. It is helpful to let the employer know at the outset that this will be required.
Each state has its own specific requirements regarding the evidence of recruitment efforts. As noted above, some states are satisfied with a description of efforts in the employer’s letter, and others require extensive documentation of print ads, web postings, letters to residency programs, and contracts with recruiters. All documentation should include the date and place of the ads. Depending on the state, if the employer has done no recruitment for a U.S. physician within the last six months, it may delay the process. It is not simply a matter of placing ads, but for recruitment to be ‘in good faith’, the efforts should be dated at least 30 days prior to signing the contract.
IMG’s CV & Credentials
The basic documents required by most states include:
- Physician’s CV
- ECFMG certificate
- Proof of USMLE Steps 1, 2, and 3
- Medical Degree
- Residency/fellowship certificates (if available)
- Proof that IMG is qualified for state licensure
IMG’s Immigration History
Most states want to verify that the J-1 physician is maintaining a valid status, and some will not recommend a waiver if the physician has overstayed by more than 180 days. Generally, states require the following:
- Copy of front/back I-94
- Copies of all DS-2019s
- Copies of I-797 approval notices, if no longer in J status
- Copy of biographic page of passport
Various and Sundry: Other Commonly Required Items
In addition to the core documents detailed above, many states have additional requirements. The most common of these are as follows:
Delaware, Idaho, Michigan, Mississippi, Ohio, Oregon, South Dakota, Texas all require a processing fee. The amount of this fee ranges from $200 (Delaware & South Dakota) to $3571 (Ohio).
Site Application and State Specific Forms
About half the states have a site application and/or specific affidavits and agreements that should be executed by the employer and/or J-1 physician. These include Alabama, Arizona, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Kansas, Maryland, Michigan, Mississippi, Minnesota, Montana, Ohio, Oregon, Nebraska, Pennsylvania, New York, New Mexico, Tennessee, Virginia, and Washington.
Community Support Letters
A number of states require letters of community support to demonstrate the petitioning facility’s involvement with community health providers, to confirm that additional physicians are in fact needed in the community, or a mixture of both. Some states, Mississippi and Missouri, specifically require letters from local physicians, and Missouri requires the local physicians to be U.S. Citizens. Illinois, Montana, and Georgia require letters from community leaders, local organizations, and local government officials. Florida requires letters to detail how the J-1 physician will support community safety net providers. Texas, Louisiana, Virginia, Arizona, Kansas, Massachusetts, and Tennessee simply require letters of community support.
Even if a state does not have a formal requirement for community support letters, it may be a good practice to include them, particularly for waivers submitted to more competitive programs. New York, for example, has a fixed application period during which it may receive fifty applications, but for thirty slots. Many different factors will be considered in the review process to determine which of the fifty will be recommended for a waiver, and certainly letters from Assemblymen, State Senators, and community leaders can favorably tip the balance. Similarly for states that may be reluctant to recommend a specialist waiver or a FLEX slot waiver, strong support from the community can have a positive influence.
Separate and apart from community support letters, several states require letters of recommendation on behalf of the J-1 physician. These include California, Delaware, Georgia, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, South Dakota, and Wisconsin. These letters do not need to be very detailed, nor do they need to extol the extraordinary abilities of the J-1 physician. Rather, most programs simply want confirmation from past supervisors that the physician is competent.
Sliding Fee Scale, Safety Net Provides, & Charitable Care
While the Conrad State 30 Program only requires that physicians serve patients residing in underserved areas, some states have added a requirement that these physicians agree to serve the medically indigent population. Many states require that employers post a sliding fee scale and/or charitable care policy, accept Medicaid, or they may give preference to safety net providers. States that emphasize service to the medically indigent include Arizona, Delaware, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, Oregon, Rhode Island, South Carolina, Tennessee, Virginia, Washington, and Wisconsin.
Prevailing Wage Determination
A handful of states want to ensure that the J-1 physician is not being brought into the community to undercut the wages of U.S. physicians. These states, Pennsylvania and Georgia, require a formal prevailing wage determination to be included with the waiver application. This requirement pre-dates the current iCert system, so query whether the ETA-9141 will need to be submitted or if a print out from the OFLC Online Wage Survey will suffice. Certainly if an ETA-9141 is required, it will add to the preparation time, as prevailing wage determinations are currently taking in excess of sixty days. Louisiana and Michigan both require documentation that the J-1 physician will be paid the prevailing wage, but seem to accept the print out from the online survey. However, Louisiana believes that all positions are at minimum Level 2. Oregon and Washington do not require a prevailing wage determination, but do require a signed and certified Labor Condition Application (LCA).
THE REVIEW PROCESS & H-1B OBLIGATION
The waiver application is filed with the State Department of Public Health in which the J-1 physician will be employed. As with everything else, processing times vary from state to state, with some taking a few weeks and others taking several months. Determining the state’s review time is an important consideration when choosing between different waiver options. For example, Washington takes about 10 days, Montana and Oregon about 15 business days, Maine about 30 days, Indiana 8 – 12 weeks, Arizona 10 – 12 weeks, Virginia 1 – 3 months, and New York at least 3 months.
Moreover, the state’s review is just the first step in a three step process. If the state issues a favorable recommendation, the application is forwarded to the Waiver Review Division of the United States Department of State (DOS). The DOS generally defers to the state’s recommendation, and forwards its concurrence to the Vermont Service Center (VSC), United States Citizenship and Immigration Services (USCIS). The DOS takes about 30 – 60 days to submit its recommendation to VSC. VSC may take up to an additional 60 days to issue the final waiver approval, on Form I-797 indicating approval of the I-612, waiver of the two year home residency requirement. Therefore the total review time for a waiver can run anywhere from about two months to upwards of eight or nine months.
A waiver only “waives” the two-year home residence requirement. It does not, in and of itself, grant employment authorization or permission to remain in the United States. In fact, it is generally understood that the three year service obligation can only be fulfilled in H-1B status. Only those J-1 physicians who receive a waiver based on their commitment to a medically underserved area may change status in the U.S. from J-1 to H-1B. All others must consular process a non-immigrant visa.
To be eligible to change status, however, the J-1 physician must be maintaining a valid status in the U.S. The three agency review process can make this difficult, and many J-1 physicians may find themselves cutting it close. Some J-1 physicians may be eligible to extend their J-1 status if they will be sitting for the Board exams. This may give the physician at least some breathing room. Another thing to remember is that the H-1B change of status petition can be filed with the DOS recommendation. It is not necessary to have the final I-612 approval to submit the H-1B. This is an area of caution, because while the H-1B change of status may be approved, the physician is not eligible for the visa stamp without the I-612. Physicians must be carefully advised of this, or they will find themselves stuck outside the U.S.
With more and more of immigration practice being nationalized, the Conrad State 30 Program is one of the few areas that require familiarity with local practices. Knowing that a state will consider specialist waivers or use of FLEX slots is only a small piece of what is necessary to successfully prepare a waiver. The individual quirks and nuances among these more than fifty programs can be quite confusing, and experience with one state program may not translate at all to another. This article is not meant to substitute for an attorney’s own review of the requirements of a program of interest, but rather to provide some insight into the wide range of divergent requirements, to perhaps help limit the search.