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J-1 Waiver Opportunities Based on Clinical Practice


Introduction

International Medical Graduates (IMG) undergoing clinical medical training in the United States in J-1 status are subject to a two-year foreign residency requirement upon completion of their training. They may neither change their status to an H-1B (specialty-occupation) nor adjust their status to permanent residency (green-card). In effect, this means that upon completion of their training, they may no longer remain in the United States, barring special circumstances.

However, the Immigration and Nationality Act (INA) provides for a waiver of the two-year foreign residency requirement where the physician commits to serving in a Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA), or in certain circumstances, where the physician commits to serve patients residing in a HPSA or MUA. The statute provides that

‘upon the favorable recommendation of the Director, pursuant to the request of an interested government agency’ the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of an alien whose admission to the United States is found by the Attorney General to be in the public interest

Within the context of J-1 waivers for IMGs, the public interest has been determined to mean providing medical services in a HPSA or MUA.

First Steps and Considerations

Employment must be in a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (MUA), or must be serving patients who reside in a HPSA or MUA

The first and most important step to obtain a waiver is to obtain an offer of employment in a qualifying HPSA or MUA, or at which the practice primarily serves patients residing in HPSA or MUA. This is the main basis for the waiver; namely committing to serve an underserved community for which U.S. doctors cannot be recruited. As background, please note that an HPSA is determined based on the ratio of the service population to the number of physicians in the community. To be considered an HPSA, the ratio must exceed 3000:1. 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, to name a few. Each waiver program has different rules regarding whether and how to grant a waiver based on the geographical region’s status as an HPSA or MUA.

There are a number of considerations in determining a qualifying HPSA or MUA. First, refer to the Department of Health and Human Services database, which will provide information about the specific address.  In addition, you can also search HPSAs by state, county, service area listing (area within the county), and census tract numbers (CT) (dividing the service area still further). For MUAs, eligible sites are listed primarily by state, county, and may also be further divided by census tract.

What is an interested government agency?

An interested government agency is basically any federal agency that has decided, pursuant to reasons related to its official mandate, to become involved in J-1 waivers. In addition, legislation called ‘Conrad State 30 Program’ allows Health Departments in each state to recommend J-1 waivers based on a clinical practice either physically situated in an HPSA or MUA, or where it can be shown that the patients being served reside in an HPSA or MUA. These are known as “FLEX” slots.

There are currently four federal agencies that have initiated their own waiver programs. These include:

  • Appalachian Regional Commission (ARC)
  • Delta Regional Authority (DRA)
  • Veterans Administration (VA)
  • Health and Human Services (HHS)

With which agency should the application be filed?

The waiver application is filed with any agency that has jurisdiction over the HPSA and/or MUA and is willing to consider the application. Please note that while more than one agency may have jurisdiction over an area, by law, a J-1 waiver application based on working in a shortage area may only be pending with one agency at any given time.  Therefore, it is important to review program requirements before filing the application. This applies even if the J-1 physician has offers at more than one site; only one application may be pending at any one time. In deciding which to pursue, the physician may want to evaluate the respective difficulty of obtaining a waiver relevant to each offer.

Waivers for primary care physicians versus specialty or sub-specialty practice

Another important consideration in determining where to file is whether the J-1 physician will practice ‘primary care medicine’ or as a ‘specialist.’ Primary care medicine is generally defined as internal medicine, family medicine, pediatrics, obstetrics/gynecology, and in some programs, psychiatry. There are a growing number of programs that will recommend waivers for specialists, particularly as recent legislation now permits federal programs to recommend waivers for specialists. However, notwithstanding this more liberal standard, two federal programs, ARC and HHS, restrict their waiver recommendations to primary care physicians.

A. Primary Care

1. Appalachian Regional Commission

The ARC may only recommend waivers for physicians working in an Appalachian County, which are located within Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia. The specific ARC counties are listed at www.arc.gov. Applicants for a waiver through the ARC must have completed a residency in family practice, general pediatrics, obstetrics, internal medicine, or psychiatry. While having undergone fellowship training does not preclude waiver eligibility, applicants must sign an affidavit agreeing to render primary medical care services to patients for a minimum of forty (40) hours per week.

2. Health & Human Services

The HHS clinical waiver program requires that applications for waivers be made within 12 months of physicians’ completion of a primary care residency. Moreover, only those facilities that are located in a HPSA with a score of 14 or higher and meet defined standards as community health centers may sponsor waiver applications. Information on this program is available at www.globalhealth.gov/newguidelines1.shtml.

B. Specialists

J-1 waiver options for clinical specialists are available through the Conrad State 30 program, a VA facility, or the DRA.

1. Conrad State 30 Program

Almost all states, and several U.S. territories, currently participate in the State 30 program, with a majority of these programs willing to at least consider waiver applications for specialists. Each of these programs have their own guidelines regarding how and when it will consider a waiver for specialists, with a number of programs even ‘setting aside’ a certain number of the 30 waivers for specialists and sub-specialists. To obtain information on the various Conrad State 30 programs, visit www.3rnet.org, which provides links to many of the individual State 30 program web sites.

2. Veterans Administration Waivers

The VA will only consider waivers for physicians contracted to work at a VA hospital, although a percentage of the physician’s time may also be served at the affiliated university hospital.

3. Delta Regional Authority

Like the ARC, the DRA may only recommend waivers for physicians working within the Mississippi Delta Region, which includes parts of Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. The specific DRA counties are listed at www.dra.gov.

Preparing the Application

Each agency has its own specific requirements regarding the type of documentation to be submitted in support of a waiver application. However, each agency requires evidence that there were recruitment efforts made to recruit U.S. physicians to these underserved areas. If no recruitment has been conducted within the last six months, it is imperative that advertisements and other efforts be made at least 30 days, or in some instances longer, prior to signing the contract.

The general documentation required for filing a waiver application includes:

  1. Letter of support by employer detailing the underserved nature of the community and the provision of medical services to the indigent;
  2. Specific interested government agency’s requirements;
  3. IMG’s resume and educational documents;
  4. IMG’s license and credentials (including ECFMG certificate, all three steps of USMLE, etc);
  5. Documentation that the proposed employment is in a HPSA or MUA, and
  6. Additional documents as required by each respective ‘interested agency.’

Filing the Application and Waiting for Results

The waiver application is filed directly with the appropriate interested agency. That agency reviews the submission and makes a recommendation to the Waiver Review Branch of the United States Department of State (DOS) regarding the waiver. The DOS then makes its recommendation to the United States Citizenship and Immigration Services (USCIS), which will ultimately issue the waiver.

The amount of time it takes for the agency to process the waiver continually fluctuates according to its own backlog and workload. Therefore, while we can estimate that a waiver will take approximately six to twelve months from the time of the initial filing, please keep in mind that this is only an estimate, and varies greatly from state to state and program to program.

Three-Year H-1B Requirement

Finally, a waiver only ‘waives’ the two-year foreign residency requirement. It does not, in and of itself, grant work authorization or permission to remain in the United States. In order to remain in the United States and work at the waiver site, the employer must apply for an H-1b on behalf of the J-1 physician. An H-1B is a temporary work authorization specific to an employer.

By law, a physician who received a waiver to work in, or to serve, an HPSA, MUA or at a VA facility must remain on an H-1B for the sponsoring employer for a period of three years. A change of employer and/or of waiver location will only be considered if ‘extenuating circumstances’ exist. A claim of extenuating circumstances must be accompanied by a new H-1b petition, and will be adjudicated by USCIS. In adjudicating the H-1b change of employers, USCIS may require documentation from the waiver program concurring with the change of site and/or employer. Otherwise, it is possible that the waiver will be revoked.

Despite the three-year, requirement, certain steps may be taken toward permanent residency (green card) status. This includes the labor certification, and/or a I-140 immigrant visa petition, approval of which is the basis for the adjustment of status or permanent residency. The final stage, the adjustment of status, may be filed only after the physician has completed three years in H-1B status.

Waiver Alternative: Fulfilling the Two-Year Requirement and Obtaining the ‘Green Card’

An alternative to applying for a waiver is, of course, fulfilling the two-year home residency requirement. As qualifying waiver positions become more and more difficult to obtain, many J-1 visa holders are considering returning home to fulfill the two-year requirement. For those physicians who choose to return home, it is possible to obtain an immigrant petition (I-140) approval before or after departure from the United States. With such an approval, the physician and his or her family may complete the final stage of the permanent residence process at the U.S. Consulate, awaiting the immigrant visa interview, which could take place only after the completion of the two-year period. Following the interview, the physician may return to the United States as a permanent resident.

Alternatives to applying for a waiver based on a commitment to provide clinical services in an underserved area include a showing of exceptional hardship to a U.S. Citizen or Permanent Resident spouse or child, or a successful application for persecution waiver (similar to asylum). Moreover, the Department of Health and Human Services (HHS) may recommend waivers for more research-oriented physicians and scientists. The research based HHS waiver is based on the IMG’s indispensability to research that is in the national interest. Note that these alternatives carry very high standards and can be difficult to obtain. Note further that there are a number of ‘non-waiver’ options that would permit an IMG to remain in the U.S. indefinitely, despite the two-year foreign residency requirement.