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Overview of Clinical J-1 Waiver Options


All foreign physicians who receive graduate medical training in J-1 nonimmigrant status must either return to their home country or country of last residence for an aggregate of two years, or obtain a waiver of that requirement, before becoming eligible to (1) apply for an immigrant visa; (2) adjust status; (3) apply for an H or L nonimmigrant visa;1 or change to almost any other nonimmigrant status within the United States.2 While many J-1 physicians choose to return home at the completion of J-1 education or training, those who prefer to remain in the United States indefinitely must obtain a waiver of the two-year foreign residency requirement. A J-1 waiver may be granted on the basis of (1) persecution the physician would suffer if the home residency requirement were enforced; (2) exceptional hardship to a U.S. citizen or Lawful Permanent Resident spouse or child if the requirement were enforced; or (3) the physician’s commitment to practice medicine in an underserved area of the United States for at least three years through the sponsorship of an “Interested Government Agency” (“IGA”).3 This practice pointer will focus on waivers granted to physicians committed to clinical practice for at least three years in a medically underserved area of the United States.

Steps in the J-1 Waiver Process

As the J-1 physician nears completion of residency or fellowship training, s/he must begin to seek job offers that will qualify for a J-1 clinical waiver. Depending on where the position is located, there may be only one suitable IGA to sponsor the waiver, or several that could agree to support the physician’s J-1 waiver application. The practitioner must have a good working knowledge of all federal or state IGAs that might have jurisdiction over the employment location and assess the IGA’s program requirements in conjunction with the physician’s background and employer’s needs, in order to properly advise the physician and/or his potential employer of the appropriate J-1 waiver processing options.

Once the physician has committed to a qualifying offer of employment, the convoluted J-1 waiver application process begins. The application must wend its way through three different agencies: the IGA, the U.S. Department of State (DOS); and U.S. Citizenship & Immigration Services (USCIS). The first step is applying for a “case number” with DOS by submitting Form DS-3035, J-1 Visa Waiver Recommendation Application. The physician or her attorney must apply online and then mail the signed original application form, filing fee, copies of passport information pages, J-1 visa stamp, I-94 card, DS-2019 forms, and signed original G-28 Notice of Entry of Appearance as Attorney or Representative to the DOS processing center in St. Louis, Missouri.4 DOS will not complete its processing of a J-1 waiver application until this step has been taken, so it is recommended that practitioners file the electronic and hard copies of the DS-3035 as early as possible in the waiver process.

Next, the physician and the sponsoring employer submit all required documentation to the IGA, following the IGA’s specific guidelines and procedures. The IGA then reviews the application and (hopefully) agrees to grant a favorable recommendation in support of the J-1 waiver request. Depending on the IGA, this process can take anywhere from a few weeks to many months. Once the IGA recommends the J-1 waiver, the entire application and IGA recommendation letter are forwarded to the DOS’ Waiver Review Division (WRD) in Washington, D.C. for its review and recommendation. While WRD almost always endorses the IGA’s recommendation,5 it occasionally requests additional documentation before doing so. This process can take anywhere from four to eight weeks (sometimes less), after which WRD issues its own recommendation letter and sends the entire filing to the USCIS Vermont Service Center, which has exclusive jurisdiction over all J-1 waiver applications recommended by an IGA. USCIS then generates the formal J-1 waiver approval notice, typically within no more than two to three weeks. The J-1 waiver approval covers both the J-1 principal as well as accompanying J-2 dependents.6

Federal regulations require the J-1 physician to complete the J-1 waiver commitment in H-1B nonimmigrant status.7 The practitioner should therefore take the H-1B requirements into account during the J-1 waiver process to avoid delays later. For example, the salary offered in the J-1 waiver employment contract should comply with wage and hour regulations governing H-1B employees, and the physician should be sure to obtain all documentation required for the H-1B petition, including a medical license in the state where he will serve his waiver commitment, as far in advance as possible so that the H-1B petition can be submitted in a timely fashion.8 In this regard, it is important to note that the sponsoring employer may file an H-1B petition on the physician’s behalf as soon as WRD issues its recommendation.9 USCIS will then process the H-1B petition and J-1 waiver approval notice simultaneously. This can be of great benefit to the physician whose J-1 status is about to expire and may need to file a change of status petition to H-1B before USCIS issues the formal approval notice.10 Another tremendous benefit to the J-1 waiver physician is the fact that all physicians who have been approved for a J-1 clinical IGA waiver are exempt from the statutory H-1B “cap.”11 This permits the physician to commence employment with the waiver sponsoring employer without regard to the numerical restrictions pertaining to other H-1B petitions. The cap exemption is personal to the physician and applies regardless of the nature of the health care facility or organization sponsoring the J-1 waiver.12

As one might imagine, processing times for J-1 waiver applications are very unpredictable and can be affected by a host of factors. In general, it is best for the physician to begin the waiver application process at least eight to nine months in advance of her desired start date, depending on which IGA is sponsoring the waiver.

State vs. Federal Interested Government Agencies (“IGAs”)

Every state department of health has the authority to sponsor up to 30 J-1 visa waiver physicians per fiscal year.13 In addition, federal agencies may agree to sponsor an unlimited number of J-1 physicians for IGA clinical waivers.14 Under the statute, any federal agency may choose to serve as an IGA for a J-1 clinical physician. At the present time, the only federal agencies with active IGA programs are the U.S. Department of Veterans Affairs, the Appalachian Regional Commission, Delta Regional Authority and U.S. Department of Health & Human Services.

Whether the IGA is a state or federal entity, the physician must agree to work a minimum of three years as a full-time clinician; must agree to begin work within 90 days of receiving USCIS approval of the J-1 waiver; and, where the physician is contractually obligated to return to his/her home country, the physician must provide a statement of no objection from the home country government in support of the waiver request.15 The employment must occur at a site that is physically located within a federally designated medical shortage area except that physicians working at facilities operated by the Department of Veterans Affairs or up to 10 physicians sponsored by each state need not practice at a facility that is actually located in a shortage area.16 Following is a discussion of the mechanics of applying for a clinical J-1 waiver, and the policies and procedures of the various state and federal agencies that agree to act as IGAs.

State Department of Health (“Conrad 30”) Waivers

Named for its sponsor and strongest proponent, Senator Kent Conrad (D-N.D.), the Conrad Program was first enacted in 199417 to provide additional recruitment options for states seeking to improve the quantity and quality of healthcare available in predominantly rural underserved areas. Federal law permits each state department of health to sponsor up to 30 J-1 waiver applications per fiscal year, including at least 20 for physicians who will work in federally designated shortage areas and up to 10 for physicians whose practice locations might not be physically located within a shortage area, but who will nonetheless treat medically underserved patient populations (flex slots).18

Federal statute requires that a physician seeking a clinical J-1 waiver through the sponsorship of a state Department of Health must

  • Agree to begin employment within 90 days of receiving the waiver
  • Commit to not less than three years service
  • Serve patients residing in federally designated underserved areas
  • 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. :19

So long as these threshold requirements are satisfied, states may impose additional requirements and restrictions in apportioning the 30 J-1 waivers they are allotted each fiscal year. Most states post their program requirements on their website, but often the requirements are stated in very general terms or are not updated regularly. It is advisable to contact the J-1 Program Administrator at the state Department of Health to clarify the nature of the requirements.

Meeting the Federal Statutory Requirements

The Contract: 90 Days, 3 Years, Full Time

All states require a formal contractual agreement between the J-1 waiver physician and the employer. Many State 30 programs also require that certain terms be incorporated and that others be excluded. The most common required terms are that “ the 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 at will termination provisions. The contract must also be for at least a three year term in order to comply with the federal statute. Further, many states require the contract to affirm the physician’s commitment to commence employment within 90 days of receiving the J-1 waiver approval, since this is also a statutory requirement.

Serve Patients Residing in a Federally Designated Shortage Area

This requirement can be met if either the physician’s practice will be physically located in a qualifying underserved area, of if the practice serves patients that reside in underserved areas:

Physically Located in HPSA or MUA

There are generally two different types of federal underserved areas: Health Professional Shortage Areas (HPSA) and Medically Underserved Areas (MUA). An HPSA is a relatively straightforward numbers calculation based on the ratio of the service population to the number of physicians in the community. 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. The following site is useful to establish whether a given address is located in a HPSA or MUA/P:

http://datawarehouse.hrsa.gov/GeoAdvisor/ShortageDesignationAdvisor.aspx.

While MUA/MUP designations seem to provide a more accurate reflection of the community needs, the MUA/MUP designations are updated less frequently than the HPSA designations. Many states prioritize HPSAs over MUAs; some states will not recommend a waiver if it is an MUA.

Serving Patients Residing in HPSAs or MUAs: The FLEX Program

The FLEX Program allows states to recommend up to 10 waivers each year for practices that are not physically located in a shortage area, as long as it can document that it serves patients residing in a shortage area. Before proceeding with a FLEX waiver, it is important to determine:

Whether the state will agree to recommend FLEX waivers (some do not)
Whether the state reserves FLEX slots for certain specialties, or specific institutions
Whether the state requires a fixed percentage of patients to reside in underserved areas in order to qualify for FLEX waiver and, if so
What documentation the state requires to demonstrate the qualifying percentage
At what point in the fiscal year the state will consider FLEX slots

Documenting the Need for a Specialist20

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. Before getting started, check with the state regarding the following:

  • Which disciplines constitute a medical specialty
  • Whether some specialists are prioritized over others
  • Whether there is a numerical limitation on the number of specialists a state will recommend each year
  • Whether slots for specialists are available at different times during the fiscal year
  • What documentation the state requires to justify the need for a specialist

Meeting the Additional State Requirements

In addition to the requirements of the federal statute, many states impose additional criteria on J-1 waiver applicants seeking a recommendation from the Department of Health, such as filing fees. Other common requirements include the following:

Recruitment Efforts

Nearly all states require some indication that the employer tried and failed to recruit U.S. physicians before resorting to hiring a J-1 doctor. However, the extent of the recruitment and the type of evidence required varies significantly from state to state. If the employer has done no recruitment within the last six months, it may delay the J-1 waiver process. Understanding the amount and breadth of recruitment required is essential to determining if a waiver opportunity is a viable option. For example, a state requiring a full six months of advertising may not be an option if it is already March and the J-1 physician’s status expires on June 30. However, it may be that the requirement is not a full six months of ads, but rather some recruitment within the last 6 months – a very different requirement.

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 specifically require letters from local physicians, community leaders, local organizations, and local government officials. Even if a state does not have a formal requirement for community support letters, it may be a good practice to include them if it seems like it may be a tough case to make; community support may favorably tip the balance.

Recommendation Letters

Several states require general letters of recommendation on behalf of the J-1 physician, confirming his or her medical competence and ability. These letters do not need to be very detailed and are typically obtained from the physician’s residency program director or other colleagues with whom the physician has worked.

Sliding Fee Scale, Safety Net Provides, & Charitable Care

Some states require a showing that the physician will serve the medically indigent population. Many states require that employers post a sliding fee scale and/or charitable care policy, accept Medicaid, or give preference to safety net providers.

Site Application and State Specific Forms

About half the states have a site application and/or specific affidavits and agreements that must be executed by the employer and/or J-1 physician. There may be additional requirements embedded in these forms that are not explicitly stated in the program guidelines. It is therefore important to review them closely.

Prevailing Wage Determination

While some states require proof that the wage offered is at least the prevailing wage, most do not require a formal prevailing wage determination. Some states believe that the salary should be at least Level 2.

Application Periods and Deadlines

Some states review waivers on a first come, first serve basis; others have fixed periods during which they will accept applications. For many of these states the deadline is very strict. Waivers are available based on the fiscal year (which begins October 1), and states may become more liberal during the second half of the fiscal year if they have not used all of their slots.

Interested Federal Agency Waiver Requests

In addition to the state Departments of Health, INA §§212(e) and 214(l) grant statutory standing to “an interested Federal agency,” to recommend J-1 clinical waivers of the §212(e) two-year foreign residence requirement. At the present time, only four federal agencies have formal J-1 waiver programs which regularly grant J-1 waivers to foreign medical graduates. The features of these four federal agency programs will be described below.

Appalachian Regional Commission

The Appalachian Regional Commission (ARC) was created by Congress for the purpose of promoting economic growth and development, improving infrastructure and building an Appalachian Development Highway System. The ARC is governed by a board consisting of the governors of 13 states and a federal co-chair. The ARC is composed of specific counties within 13 states: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia.

ARC makes J-1 waiver recommendations for physicians who commit to practice three years in a HPSA within the ARC’s jurisdiction. The program is somewhat limited in scope. It is limited solely to primary care and mental health positions, and prior to employment, the physician must have completed a residency in family practice, general pediatrics, obstetrics, general internal medicine, or psychiatry. The waiver recommendation must be signed by the governor of the ARC state in which the physician will work. Thus, ARC waivers are typically initiated with the state health department or some other designated office within the worksite state.

The waiver applicant employer must provide evidence that it has attempted to recruit a U.S. physician within the six month period immediately preceding the request for a waiver. The sponsoring employer must agree to accept Medicare and Medicaid patients, and charges must be discounted on a sliding fee scale basis for persons at or below 200 percent of the federal poverty level.

The ARC requires that the physician employment contract contain a $250,000 liquidated damages clause, conditioned upon the physician remaining with the employer for the entire three years of promised service. However, the clause will not be triggered if the physician moves to another employer within a HPSA area, within the ARC region. The liquidated damages clause is something of an anachronism, since the USCIS actually has ultimate authority to approve or disapprove physician transfers from the original waiver employer, under its “extenuating circumstances” authority under INA §214(l). It is unclear whether the liquidated damages clause could be enforced against a physician who obtains authorization from the USCIS to transfer out of the ARC region to another medically underserved area. Nonetheless, the liquidated damages clause is a chilling factor for recruitment of physicians, because many physicians do not want to subject themselves to such a large, potential penalty.

ARC’s J-1 policies and procedures are posted on their website: http://www.arc.gov/j1visawaiver.

Department of Veterans Affairs (VA)

The Department of Veterans Affairs (VA) makes waiver recommendations for clinical positions which it cannot fill with a U.S. physician. J-1 waivers are initiated by VA hospital facility directors who must show that “…the loss of the Exchange Visitor’s services would necessitate discontinuance of a program or a major phase of it, and recruitment efforts have failed to produce a qualified citizen or permanent resident applicant for the position.”

VA guidelines require the facility to show that it has not been able to recruit a U.S. physician during an ongoing and comprehensive recruitment effort. Waiver requests are made from a VA facility to the VA Central Office. The request for a waiver is made by the VA Central Office to the U.S. Department of State Waiver Review Division.

From the perspective of the foreign physician, the VA J-1 waiver process is fraught with risk. Up until the time that the waiver request is transmitted to the USDOS, the VA will halt the waiver process if a U.S. physician becomes available for the position. Also, VA will not pay any attorney fees for the waiver process or for preparation of the H-1B petition. Consequently, the waiver applications and I-129H petitions are usually prepared by non-attorney VA personnel who may possess varying degrees of expertise regarding the immigration process. The physician may personally hire an immigration attorney to monitor and consult with cooperative VA personnel, but the process is cumbersome at times.

Currently, many immigration attorneys discourage their physician clients from pursuing a VA waiver, especially if there is any reasonable alternative available. However, the VA can be an attractive option in some cases, particularly for sub-specialist physicians who may have trouble obtaining a waiver through a state department of health, as those agencies generally give preference to primary care physicians.

Department of Health and Human Services (HHS)

In 2004, the Department of Health and Human Services initiated a J-1 waiver program for clinical care, as a response to the cessation of the U.S. Department of Agriculture J-1 waiver program. It is fair to say that HHS has not been enthusiastic about implementing a proactive waiver program. Currently, the HHS program is limited to primary care specialties (family medicine, general internal medicine, general pediatrics, obstetrics & gynecology) or general psychiatry. More significantly, HHS will only process an application for a J-1 waiver from a facility in or with a HPSA score of 07 or higher. Furthermore, a facility in a HPSA that scores 07 or higher must be one of the following: a health center as defined under Section 330 of the Public Health Service Act, and which is receiving a grant from the U.S. Health Resources and Services Administration under that section; a rural health clinic as defined under Sections 1102 and 1871 of the Social Security Act; or a Native American/Alaskan Native tribal medical facility as defined by the Indian Self-Determination and Education Assistance Act (P.L. 93-638).

Due to its very limited scope, there are a very small number of facilities that qualify for the HHS clinical J-1 waiver program. As a result, the HHS program is not widely used. HHS’s J-1 waiver website is:
http://www.globalhealth.gov/global-programs-and-initiatives/exchange-visitor-program/. Clinical care waiver applications are processed by, and questions can be directed to: Michael K. Berry, (301) 443-4154.21

Delta Regional Authority (DRA)

The DRA is a state/federal agency, similar to the Appalachian Regional Commission. It was created by Congress to help foment development in an economically depressed region of the U.S. As part of its mission, the DRA is committed to improving access to healthcare in the DRA region. It has implemented a very effective J-1 waiver program for physicians who commit to serve three years in one of the 252 DRA counties within its eight state jurisdiction (comprised of Illinois, Kentucky, Missouri, Tennessee, Arkansas, Mississippi, Louisiana and Alabama). A list of DRA counties are found at http://www.dra.gov/about-us/eight-state-map.aspx.

The DRA program recommends J-1 waivers for both primary care and sub-specialty positions. Positions may be in HPSAs, MUAs, or may be for medically underserved populations (MUPs). The DRA requires a contractual liquidated damages clause (LQD) similar to ARC. However, DRA’s $250,000 penalty is reduced pro rata for each month that the physician serves in the DRA area. Most importantly, the LQD may be waived if both employer and physician consent, which eliminates the chilling effect the LQD can otherwise introduce into the recruitment process. This feature makes the DRA program much more effective for addressing physician shortages in the Mississippi Delta region. DRA also requires that the employer demonstrate it has recruited unsuccessfully for a U.S. physician for at least 60 days preceding the filing of the waiver.

The DRA does charge a $3000 fee for processing the waiver request. Nonetheless, because of the favorable features of its program and its overall proactive attitude, the DRA remains the preferred avenue for physician J-1 waivers in the areas under its jurisdiction. Most DRA waiver applications are processed within one month.

DRA’s guidelines appear on its website22: The current DRA J-1 waiver coordinator is Bevin Hunter. She can be reached at 662-624-8600, or at bhunter@dra.gov.23

Conclusion

Navigating your clients through the J-1 waiver application process itself is only part of the equation. There are a host of other issues that arise during and following the J-1 waiver application process that require thoughtful and balanced counsel, including the perils of travel while the J-1 waiver application is pending; transferring employment after the J-1 waiver has commenced; and advising J-2 dependents on their employment options during the J-1’s three year J-1 waiver commitment. While this practice pointer is necessarily limited in scope, many of these issues will be covered during the live panel session to which this Practice Pointer is an accompaniment. In addition, the authors advise you to consult other materials available on AILA InfoNet and Agora for further information, including Practice Pointers for Healthcare Immigration Cases (InfoNet Document Number 12050246); Clinical J-1 Waivers – A Primer (published in the 2009 AILA National Conference Handbook); and Immigration Options for Physicians (3d Edition).