Physicians
INTRODUCTION TO J-1 PHYSICIAN WAIVERS
J-1 Exchange Program Generally
In 1965, the United States Congress passed a law establishing scholarships and programs to permit foreign medical graduates to pursue advanced medical training in the U.S. for periods normally not to exceed seven (7) years. Thousands of such physicians apply each year to participate in the Educational Commission for Foreign Medical Graduate's (ECFMG) Exchange Visitor visa (J-1) program. The small percentage who are accepted must agree that upon completion of their training in the U. S. they will return home for two years before they are eligible to return to the U.S. as either an immigrant ("green card"), or H-1B non-immigrant. They reaffirm this agreement to return home each time they execute a form IAP-66 to continue their training in the U.S. This J-1 program has resulted in significant health care improvements in the home countries of these exchange visitor physicians.
Waiver Opportunities
Waivers of the two-year foreign residency requirement are primarily available only through interested U.S. government agencies or for "extreme hardship" cases. However such waivers have stringent requirements. Generally a J-1 physician may obtain a waiver only if: (i) he or she would be subject to persecution if required to return home; or (ii) can establish "extreme hardship" would result to a US citizen spouse or child if required to return home; or (iii) based upon a recommendation from a US government agency interested in the J-1 physician's continued presence in the United States.
Most J-1 waivers for physicians are based upon either: (i) a Department of Veterans Affairs (VA) or Appalachian Regional Commission (ARC) request; or (ii) by securing a primary care position in a rural Health Professional Shortage Area (HPSA) under the sponsorship of either a State 30 Conrad Program or the United States Department of Health and Human Services (HHS) will assume sponsorship. Such waivers are normally conditional until after the physician completes three years employment in H-1B visa status.
VA, State 30 Conrad and HHS waivers almost always are limited to employers who have been unable to recruit a U.S. physician to work in the position offered. As a result, many J-1 Physicians often encounter difficulty in locating a suitable waiver eligible position.
Common Misconceptions About Rural Practice
Some J-1 Physicians do not have a realistic appreciation of what serving in a rural HPSA community can involve. Some potential problem areas which may be encountered are:
1) A physician's expectations of rural practice are often very different from actual conditions, i.e. (i) medical equipment/technology will almost always be less than "state of the art", (ii) physician patient loads and responsibilities are often much greater because you may be expected to treat every patient that "walks in the door", (iii) he/she may be the only physician available for "on call" emergencies, etc.
2) Some physicians fail to make the effort or commitment required to assure the rural practice is successful. Failure to gain the trust and acceptance of the rural community can cause many to avoid utilizing his or her medical services.
3) A rural community can be the best environment for a young family today because of the crime and population density in many U.S. urban areas. Unfortunately, a physician's family members often do not see it that way. The spouse and/or children may become resentful and dissatisfied in a small town environment. (limited access to entertainment, shopping, dinning, etc.)
Delaying the Two Year Requirement Deadline
When a suitable J-waiver position is currently unavailable, some J-1 Physicians may be qualified for and will seek "O" non-immigrant status, as an interim measure. This allows them to stay and work in the U.S. while exploring potential waiver options. Some choose "O" status in order to accumulate surplus funds with which to supplement their income when they leave the U.S. to satisfy the two-year requirement.
THE ULTIMATE ALTERNATIVE TO A J-WAIVER
You have an education, a medical license and are probably approximately thirty-two years of age. Projections indicate ever increasing shortages in most medical specialty fields as the U.S. population continues to age. Two years is not a long time if a waiver eligible position is either unavailable or undesirable. For our clients who choose to return "home", we advise that before departing the United States they obtain a medical license in a state where they expect to live and can locate an employer who will need someone with their qualifications in two years. Then a labor certification can be started as soon as they complete their residency and either an immigrant ("green card") or an interim H-1B visa can be waiting for their return to the U.S. as soon as they complete the two-year requirement back home.
Two-Year Foreign Residence Requirement
The Exchange Visitor Program ("J") was previously administered by the United States Information Agency. It is now administered by the Waiver Review Division within the Visa Office of the U.S. Department of State. Many exchange visitors entering the United States are subject to an immigration provision set forth at 8 U.S.C. 1182 (e) [section 212 (e) of the Immigration and Nationality Act], which requires they return to their home country (or last foreign country of residence, when applicable) for an aggregate period of two years.
Foreign physicians and their dependents, who enter the United States in "J " status are subject to this two-year return requirement if they entered the U.S. to pursue graduate medical education or training under the sponsorship of the Educational Commission for Foreign Medical Graduates ("ECFMG"). Exchange visitors subject to this two-year requirement are not eligible for H, L, or permanent resident ("green card") status until the return-home requirement is either fulfilled or a waiver application is granted.
Prior to 1991 foreign medical graduates essentially had no alternative but to obtain a J visa to receive graduate medical education or training in the U.S. In 1991 the U.S. Immigration and Nationality Act was amended to allow foreign medical graduates ("FMG's") to enter residency programs based on either H-1B status or J status. The two-year foreign residency requirement is not imposed on an H-1B FMG. However, some residency programs are not willing to sponsor FMG's for H-1B status.
Before a FMG can obtain H-1B status, s/he must have passed all parts of the USMLE examination (or all parts of the FLEX or NBME examinations which the USMLE has replaced). Only a few states allow FMG's to take part III of the USMLE until after they have completed the first year of their residency program. Only after successfully passing the USMLE and obtaining a temporary license to practice medicine from the state in which the actual intended residency program is located, is an FMG eligible for H-1B for that residency program.
Obtaining a Waiver of The Foreign Residence Requirement
The three bases upon which a foreign "J" physician waiver may be granted are: (i) exceptional hardship to the physician's U.S. citizen (or legal permanent resident) spouse or child; (ii) a reasonable fear of persecution if the physician were to return to his or her home country; or, (iii) a request, on the physician's behalf, by an interested United States Government agency or state health department. The Visa Office's Waiver Review Divison ("DOS") is responsible for making final "J " waiver recommendations to the U.S. Bureau of Citizenship and Immigration Services ("BCIS"). General Waiver Requirements. DOS Waiver Processing Times. DOS Waiver Review Processing Procedures.
Interested U.S. Government Agency ("IGA")Waiver Requests:
Most J-1 physicians' best chance of obtaining a waiver of the foreign residency requirement is to procure an appropriate government agency recommendation as discussed below. Many IGA requests are made by either the U.S. Department of Veterans Affairs, U.S. Department of Health and Human Services, Appalachian Regional Commission, and more recently by the Delta Regional Authority (DRA). In return for these agency requests, the foreign medical graduate must normally agree to practice for a period of three years in an area designated by the Secretary of Health and Human Services as either a Primary Care Health Professional Shortage Area ("HPSA")/Medically Under Served Area ("MUA"), or at a facility operated by the Department of Veterans Affairs. Mental Health Professional Shortage Areas are separately designated by HHS.
State Health Departments can also request waiver recommendations (not to exceed a total of 30 per year per state) on behalf of "J " foreign medical graduates. Such "State 20" waivers are subject to the requirements of section 214(k) of the Immigration and Nationality Act (8 U.S.C. 1184) and other applicable agency regulations. A position in an MUA (versus only HPSA's for USDA) may qualify for a "State 30" waiver request.
Consular Processing for H-1B Visa Based on Waiver:
J Physicians whose legal status expires while their waiver or H-1B petition is in process should be able to obtain an H-1B visa without returning to their home country. This may be accomplished by applying in a third country (ie Canada or Mexico) based upon "extraordinary circumstances," if the approved waiver or H-1B petition was filed prior to expiration of the J-status. (CAUTION: An alien who "overstays" in the U.S. for more than 180 days could be barred from the U.S. for three years or longer.)
Failure to Complete Three (3) Year H-1B Conditional Waiver Requirements:
The Immigration Reform Act of 1996 ("IIRAIRA") makes any government agency requested waivers granted by USCIS to "J " physicians after October 31, 1996, conditional upon certain "J " physician successfully completing a specific three-year period of service in H-1B status. These current requirements and consequences are described in an USCIS memorandum dated October 4, 1999.
Obtaining Immigrant/"Green Card" Status:
After obtaining a J waiver and H-1B status, a new option for obtaining immigrant status ("green card") for foreign physicians now exists based on a National Interest Waiver. This option is in addition to the traditional avenues to obtaining a "green card".
Health Professional Shortage Areas in the U.S. ("HPSA")
Appalachian Regional Commission
United States Medical Licensing Examination Web Site
Educational Commission for Foreign Medical Graduates Home Page
Federation of State Medical Boards Home Page