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Leaving No Stone Unturned: Considering Every Option for Physician Waivers


When consulting with an individual in J status, it is usually appropriate to evaluate whether the exchange visitor (EV) is subject to section 212(e) of the Immigration and Nationality Act, also known as the two-year home residence requirement.[1] This includes an analysis, inter alia, of whether or not the EV received government funding, an analysis of the EV’s field and whether it is designated on the Exchange Visitor Skill’s List[2], and perhaps even an analysis of what should be considered the EV’s country of last residence. If it is then determined that the EV is subject to the two year home residence requirement, the discussion turns to options to remain in the United States, to fulfill the two years, or to obtain a waiver.

With exchange visitors who come to the United States to receive graduate medical education or training, there is no need to evaluate whether or not the EV is subject to the two-year requirement. Every EV who comes to the U.S. for graduate medical education (GME) or training is subject.[3] End of discussion. Even those who excitedly show me the visa stamp or DS-2019 that indicates “not-subject,” I am tasked with being the bearer of bad news. If the EV is sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) for GME,[4] then it is not a matter of consular discretion; as a matter of law, the EV is subject to the home residence requirement. With these individuals, the discussion therefore starts not with an analysis of whether they are subject, but with what steps can be taken should they decide to remain in the United States.

This article will discuss the options for J-1 physicians who wish to obtain a waiver of the two year home residence requirement. It will provide a brief overview of the strategies most commonly pursued for physicians, and will explore the possibilities of petitioning for a waiver though some less obvious routes. Examining the feasibility of these less obvious routes is not to pretend that there will be a waiver solution for every J-1 physician. Rather, it is to provide the necessary tools to do a more complete exploration of the waiver possibilities that may be available to an individual J-1 physician.

What Is a Waiver?

A J-1 physician subject to the two-year home residence requirement may not obtain an H-1B visa, an L-1 visa, change non-immigrant status within the U.S., nor adjust status to permanent residency or obtain an immigrant visa.[5] In effect, this means that, upon completion of GME training, the EV may no longer remain in the United States, barring special circumstances.[6] A waiver of the two year home residence requirement ‘waives’ these exclusions, opening the door to J-1 physicians for non-immigrant and immigrant visa options. To take advantage of these opportunities, J physicians still need to meet the eligibility requirements and take the appropriate steps to obtain the relevant benefit. The waiver simply provides that they no longer have to return home for two years before doing so.

Typical Avenues for Physicians to Obtain a Waiver[7]

With the exception of the “no objection” statement,[8] physicians are eligible for a waiver through the same avenues available to all other exchange visitors. These include waivers based on persecution, if the physician can demonstrate he or she would be subject to persecution in his or her home country;[9] a waiver based on exceptional hardship to the physician’s U.S. citizen or permanent resident spouse or child;[10] or the favorable recommendation of an interested U.S. government agency, or “IGA”.[11] As both the exceptional hardship and persecution waivers are the subject of other articles,[12] this article will limit its discussion to waivers through an IGA.

INA § 212(e) refers to “an interested United States Government Agency,” meaning only federal government agencies may qualify as an IGA for purposes of recommending waivers. In exploring IGA waivers for physicians, the options are typically divided between clinical service-based waivers and research-based waiver. For clinical service-based waivers, there are a number of IGAs with established programs specifically aimed at bringing physicians into underserved communities to provide clinical medical services. These include the Delta Regional Authority (DRA),[13] the Appalachian Regional Commission (ARC),[14] the Veterans Administration (VA)[15], the Department of Health & Human Services (HHS)[16], and the congressionally mandated Conrad State 30 Program.[17]

Each of these programs has its own quirks and variances. For example, some of these programs will only recommend a waiver for physicians who practice “primary care”,[18] others may have extended service requirements;[19] and others may be limited to specific types of facilities.[20] Moreover, as evidenced by its title, the Conrad State 30 Program limits states to recommending 30 waivers a year, regardless of the size or needs of each state. What all of these programs have in common is that they are available only to those physicians who commit at least three years to providing clinical medical services to an underserved population.

There are not as many established programs for physician research-based waivers as there are for clinical service-based waivers. As the U.S. government’s principal agency for protecting the health of all Americans and providing essential human services, HHS has perhaps the only well-established procedures for considering waivers on behalf of medical researchers.[21] The HHS waiver is purely based on the J-1 physician’s research. When reviewing a waiver petition, HHS will not consider the J-1 physician’s teaching responsibilities or clinical excellence. HHS is only interested in the J-1 physician’s indispensable role in a scientific program that HHS deems to be in the national interest, and the detrimental impact to the research should the J-1 physician be required to fulfill the two year residence requirement.[22] HHS will consider waivers based on clinical research; however, providing clinical services other than those which are incidental to the research is considered a negative factor.

Atypical Avenues for Physician Waivers

With all the above-mentioned waiver options for physicians, why is there a need to consider anything else? Why bother with less obvious or atypical routes? Well, as also noted above, IGA waivers for physicians are principally divided between those who provide clinical services and those who perform research. But in reality, life is not that neat and not every physician will fall squarely within one box or the other. There are many physicians who provide clinical care and perform research and have a myriad of other responsibilities which may include teaching, innovating clinical procedures, writing case reports and chapters, and otherwise advancing the field. Unfortunately, these types of responsibilities are not taken into consideration nor given any weight in any of the ‘typical’ avenues for waivers described above.

Moreover, the ‘typical’ avenues for clinicians, described above, favor primary care physicians. This greatly reduces the waiver options to retain specialists and sub-specialists, despite the circumstances that demonstrate the need for their continued presence in underserved communities. While the DRA, the VA, and the Conrad State 30 program may recommend waivers for specialists, the DRA and the VA are limited in geographic scope, and the Conrad State 30 is limited in numbers. As a result, there are many physicians whose services are in the public interest, but for whom there is no ‘typical’ avenue available to apply for a waiver.

The question, therefore, is what are the waiver options for physicians for whom a ‘typical’ waiver is not available? While no quick and easy answer comes to mind, it should be remembered that the IGAs noted above are not the only game in town. There are a number of other IGAs with established waiver procedures, and still more that do not have established procedures but may be willing to recommend a waiver for reasons related to its official mandate.[23] For those IGAs with established programs, there is usually, but not always, a requirement that the J-1 physician be working on a contract or grant funded by the IGA, and that the J-1 physician be ‘essential’ to the goals of that research. However, threshold requirements vary from program to program, so it is important to review the specific waiver program before deciding to proceed.

A brief overview of established programs that may be relevant to a J-1 physician is include the following:[24]

Department of Defense (DoD)

The Department of Defense (DoD) will only consider waiver requests for those individuals working in support of DoD contract with civilian/defense industry. Interestingly, DoD funds a number of programs on Breast Cancer, Prostate Cancer, Ovarian Cancer, Neurofibromatosis, Psychological Health/Traumatic Brain Injury, and other areas of medical research. These waivers require the support of a Senior Executive Service (SES) or flag rank level (General/Admiral) before it will be supported by DoD as an agency.[25] When applying for this type of waiver, it is useful to investigate the likelihood of this level of support before preparing the waiver application. This can save a lot of heartache should this support not be forthcoming.

In addition to waivers for those EVs supporting a DoD contract, DoD will also consider waiver requests for those performing research at one of DoD labs or research centers; such as Walter Reed or the Uniformed Services University Health Sciences.[26] These waivers do not require the support of an SES or flag rank level official. However, applications for a waiver of the two-year residence requirement on behalf of a physician must be processed through and endorsed by the interested Government Component’s Surgeon General’s Office.[27]

Although DoD requires certain internal signatures before supporting a waiver, only one individual is authorized to sign the waiver request that is submitted to the Department of State (DOS). The authorized person must either be the head of that agency or an individual designated by the head of the agency.[28] For DoD, the designated official for signatures is below:[29]

Nancy L. Spruill, Director
Office of the Under Secretary of Defense (Acquisition, Technology and Logistics)
Room 3E1025
3020 Defense Pentagon
Washington, DC 20301-3020

It is important to note that since the waiver application has several internal reviews, it may take upwards of six months for a recommendation.

National Aeronautics and Space Administration (NASA)[30]

The National Aeronautics and Space Administration (NASA) has a similar protocol. To be eligible for a waiver recommendation from NASA, the alien must be working under a NASA contract, grant, or cooperative agreement that has been and would continue to be of significant importance to NASA and the Nation’s aeronautics or space program. NASA supports a number of medical research programs.[31] For example, there is the International Space Station Medical Project, which investigates the problems and risks to human health associated with exploration missions; the Space Radiation Program Element, which investigates the ‘permissible exposure limits’ relevant to living and working in the space radiation environment; and the Behavioral Health & Performance Element, which identifies characterizes and prevents or reduces behavioral health and performance risks associated with space travel, exploration and return to earth, to give just a small sampling.

Applications for a NASA waiver recommendation are submitted to the Contracting Officer, who makes the preliminary determination of whether NASA should seek a waiver. Factors such as the importance of the EV’s role in the NASA project, the duration of the NASA project, and the EV’s qualifications are considered in making this determination. Moreover, NASA wants evidence that the individual has no other avenues for a waiver (such as proof that they cannot obtain, or are not eligible for, a no objection statement), and may not recommend the waiver where the EV has an outstanding financial obligation to either the U.S. or a foreign government.

The point of contact (POC) for NASA waivers is Helen Lambert, and the designated official for signature on a NASA waiver recommendation is John F. Hall, Jr., Director, Export Control and Interagency Liaison Division, NASA,
Washington, DC 20546-0001.

Department of Energy

Like DoD and NASA, the Department of Energy (DOE) will only recommend a waiver when the EV is participating in a DOE grant or program. And like the DoD and NASA, DOE supports a number of research programs that may involve J-1 physicians. In fact, DOE founded the Human Genome Project, which produced the complete DNA sequences of genomes for many organisms, and is continuing to use this data to evaluate protein function.[32] In addition, there are also DOE programs to ensure the availability of radio isotopes, key agents in the diagnosis and effective treatment of various cancers, heart diseases, and other medical problems. DOE also supports research to investigate long-term health consequences of energy production, development and use.

As with DoD and NASA, the waiver application is submitted directly to the Cognizant Program Officer, who performs the initial review of the application. If the Program Officer supports the waiver, he or she refers the case to the Office of General Counsel, which reviews and sends it to the Office of International Office of International Travel and Exchange Programs. Again since the waiver application has several internal reviews, it frequently takes at least six months for a recommendation.

The point of contact for DOE waivers is:

Debra Hunter
Alternate Responsible Officer
Office of International Travel and Exchange Programs
Office of Administration
Department of Energy
1000 Independence Avenue, S.W.
Washington, DC 2058
debra.hunter@hq.doe.gov

Department of the Interior (DoI)

The Department of the Interior (DoI) will recommend waivers for those employed by DoI.[33] Query if that includes physicians providing services to the Native American or Native Alaskan populations. The point of contact (POC) for DoI waivers is Kathy Washburn, and the designated official for signature on a DoI waiver recommendation is Larry Finfer, Director, 1849 C Street N.W., MS 4426
Washington, DC 20240

National Institutes of Health (NIH)[34]

As part of the Department of Health and Human Services, the National Institutes of Health is not an IGA, and may not make a waiver recommendation. However, as a J-1 program sponsor, NIH must comment on a waiver application pending with DOS. This typically arises in the context of a no objection waiver. While not available to ECFMG-sponsored physicians, the no objection waiver may be an option for NIH-sponsored medical researchers. A ‘no objection’ waiver is basically one in which the EV’s home country or last country of residence indicates that it has ‘no objection’ if the EV does not want to return. If the home country has ‘no objection,’ DOS will request the views of the program sponsor. If the program sponsor has no objection, the waiver is more or less a given.

NIH established a policy and procedure by which NIH-sponsored EVs may formally request NIH’s concurrence on the waiver. The NIH policy is limited to those cases in which the EV received a formal offer of employment in the biomedical sciences from the NIH; or received an offer of employment in the biomedical sciences outside the NIH, but within the U.S. An employment offer as an NIH contractor does not meet these requirements.

The current coordinator for this program is

Cynthia Tasaki
Lead Immigration Specialist
National Institutes of Health
31 Center Drive, MSC 2028
Building 31, Room B2B07
Bethesda, MD 20892

Department of State (DOS)

Finally, the Department of State itself is an IGA and may recommend a waiver on behalf of an EV. The DOS does not have an established protocol for considering waiver applications, and will only make such recommendations in very limited circumstances. Probably the most frequent situation in which DOS will act as an IGA is not on behalf of a J-1, but rather on behalf of a J-2 spouse or child.

The issue of whether the J-2 is subject is hotly contested.[35] However, it is the DOS’ position that J-2s are subject, and that J-2s cannot apply directly for a waiver. Of course for almost every rule there is an exception. In the context of the J-2, the exception is that DOS will act as an IGA on behalf of the J-2 in cases of divorce or where the J-2 child has turned 21. For waivers involving a divorce, DOS will want evidence that it is bona fide, and not merely for purposes of obtaining the waiver. An affidavit from the J-2 spouse explaining the history that lead to the divorce should suffice. For an ‘age-out’ waiver, it is usually sufficient to provide the J-2 child’s birth certificate. The J-2 waiver application may be filed directly with the request for a case number.

In addition to those detailed above, there are several other IGA established waiver programs, and it may be worth reviewing these programs to evaluate if there may be a creative solution for your client. Yet, as discussed above, an established procedure or protocol is not a prerequisite for a government agency to recommend a waiver. Any federal agency may recommend a waiver, as long as it is signed off by the head of the agency or his or her designee. The head of the agency means the top official for the top agency. So, for example, the Defense Advanced Research Projects Agency (DARPA) is the central research and development organization for the Department of Defense (DoD). DARPA may not independently recommend a waiver; instead, it would need to be supported by the DoD. Note that the Department of the Army, Department of the Air Force, Department of the Navy, and the U.S. Coast Guard are all separate government agencies, and may act as an IGA in supporting a waiver independent of the DoD.

Identifying the agency with authority to recommend the waiver is a critical first step, particularly when that agency may be unfamiliar with, or new to, the waiver process. One way to confirm whether the agency is an IGA, is to review the list of government agencies in “The United States Government Manual.”[36] Another is to check information on the agency’s website. In addition, a DOS advisory opinion may be sought to verify if an agency does have the authority to act as an IGA.

Unlike IGAs with established procedures, IGAs that do not have structured criteria may be more open to arguments regarding how the physician’s departure would be detrimental to a program or activity of official interest to that agency. For example, the U.S. Coast Guard acted as an IGA for a physician serving the needs of Coast Guard employees and their families in North Dakota.[37] While the U.S. Department of Education has suspended its official waiver program,[38] would it consider recommending a waiver for a physician in academic medicine who is truly exceptional and has shown no other waiver options? Or would the Consumer Product Safety Commission consider recommending a waiver for Medical Toxicologist who both treats those exposed to toxic substances, and educates the public about the dangers of homeopathic remedies? These are just a couple of potential arguments that may be made to the relevant government agency on a case by case basis.

An IGA that does not have an established procedure may also need to be educated about the waiver process. There is no requirement that the J-1 physician have worked for, been funded or sponsored by the government agency. In general, an IGA may sponsor a waiver for any reason that the government agency wishes. The key is to establish a nexus between the IGA and the physician’s intended employment, showing how granting this waiver would serve the public interest; and explain specifically how the case merits a favorable decision.[39] In some instances, it may even involve convincing the IGA that it qualifies as an IGA![40] An IGA that determines it to be in the “public interest” for the EV to remain in the United States may forward an application to the DOS.[41]

Conclusion

Physicians who receive GME in J status are all subject to the two-year home residency requirement. These physicians are also the only EVs who by law are ineligible for a no objection waiver. To an extent, this limitation is counter-balanced by the number of physician-specific waiver programs. Unfortunately, these waiver programs are quite simply not sufficient. They do not account for the importance of sub-specialists, nor the importance of academic physicians – leaving these groups with fewer possibilities to obtain a waiver. This article does not purport to pull a rabbit out of a hat. It merely attempts to generate new ideas for waiver strategies.


* Suzanne B. Seltzer manages the New York office of Klasko, Rulon, Stock & Seltzer LLP. She currently chairs AILA’s Vermont Service Center liaison committee, co-chairs the National Coalition for Access to Healthcare (FMG taskforce), Co-Chairs the NYC Anti-Trafficking Network’s legal subcommittee, and previously Co-Chaired AILA’s NY District Director Liaison Committee. Ms. Seltzer is a frequent speaker on immigration options available to international medical graduates and research scientists, and is the author of several articles. Ms. Seltzer obtained her JD from Georgetown University Law Center, and her B.A. from the University of Pennsylvania.
[1] Immigration & Nationality Act of 1952, Pub. L. No. 82-414, §212(e), 66 Stat. 163 (codified as amended at 8 USC § 1101 et seq.) (INA §212(e)).
[2] Exchange Visitor Skills List, 9 Foreign Affairs Manual (FAM) 41.62. Exhibit II.
[3] INA §212(e)(iii).
[4] In addition to sponsoring EVs for participation in GME, ECFMG also sponsors EVs for participation in advanced research programs (involving primarily observation, consultation, teaching or research). If the EV is participating in an advanced research program, the return requirement does not apply unless the practice area is on the skills list or there is government financing.
[5] INA §212(e),
[6] Those subject to INA §212(e) are not precluded from issuance of other visas, such as F, O, E, etc.
[7] An excellent resource on J waivers is Siskind, Stock, and Yale-Loehr, J Visa Guidebook (LexisNexis 2008) (J Visa Guidebook).
[8] Public Law 94-484 precludes those who were admitted or acquired J status on or after January 10, 1977 for the purpose of receiving graduate medical education from obtaining a waiver pursuant to a “no objection” statement.
[9] INA §212(e)
[10] Id.
[11] Id. IGAs do not grant waivers. The authority to grant waivers is solely with U.S. Citizenship & Immigration Services. Rather, an IGA recommends a waiver to the Department of State, which then reviews the application in light of program and policy considerations, and makes its recommendation to USCIS.
[12] “The Hake Hardship Scale for J-1 Waivers,” 10 Bender’s Immigration Bulletin 403-420 (March 1, 2005).
[13] http://www.dra.gov/programs/doctors/
[14] http://www.arc.gov/index.do?nodeId=24
[15] http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1219
[16] http://www.globalhealth.gov/exchangevisitorprogram/index.html (Supplement B – Clinical Care)
[17] Since state departments of public health do not qualify under the definition of an IGA, this legislation enabled each state to recommend up to thirty waivers each fiscal year.
[18] The definition of primary care varies from program to program.
[19] INA §212(e) states that physician waivers are subject to INA §214(l), which imposes inter alia a three year service commitment.
[20] HHS will only recommend clinical waivers to EVs committed to work at rural health clinics, certain Native American facilities, and health centers defined under Section 330 of the Public Services Act that are the recipient of an HRSA grant.
[21] http://www.globalhealth.gov/exchangevisitorprogram/index.html (Supplement A – Research)
[22] Suzanne B Seltzer, Demystifying the HHS Waiver Process, Matthew Bender’s Immigration Law Bulletin (October 1, 2004); also published in Immigration’s New Age: Discovery, Adaptation, and Survival (AILA, December 2004)
[23] A comprehensive list of U.S. government agencies is “The United States Government Manual” available at http://www.gpoaccess.gov/gmanual/browse-gm-06.html. (US Government Manual)
[24] Note that the National Science Foundation, which has an established waiver program and protocol, does not consider waiver applications for those working in medical research. For a more comprehensive discussion of IGA programs, see the J Visa Guidebook, op. cit. at 2.
[25] http://www.acq.osd.mil/ecs/ (Review of Requests).
[26] Department of Defense, http://www.acq.osd.mil/ecs/
[27] Id.
[28] INA §212(e).
[29] Department of State maintains a list of designated officials for signatures, which is available on its website at http://travel.state.gov/visa/temp/info/info_1293.html. The information contained in this article was based on the listings current as of the writing of this article.
[30] http://nodis3.gsfc.nasa.gov/displayDir.cfm?Internal_ID=N_PR_1371_0001_&page_name=Chapter1
[31] http://humanresearch.jsc.nasa.gov/
[32] http://genomicsgtl.energy.gov/
[33] Department of the Interior, http://www.doi.gov/intl/
[34] http://dis.ors.od.nih.gov/pdf/nihnoswaiverpolicy.pdf
[35] Schorr & Yale-Loehr, The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again, 18 Georgetown Immigr. L.J. 221 (2004)
[36] US Government Manual, op. cit., at 23.
[37] Statement of the Honorable Kent Conrad, U.S. Senator from the State of North Dakota, May 18, 2006
[38] http://www.ed.gov/offices/OPE/Professionals/waiverboard/index.html
[39] William A. Stock, “Understanding the Two-Year Home Residence Requirement and Waivers,” Immigration Options for Academics and Researchers (Ed. Berger and Borene) AILA 2004. Pp 231 – 238.
[40] http://www.klaskolaw.com/j-1-waiver-quasi-us-government-agency.php
[41] Id.