Two Year Foreign Residency Requirement
Under the Immigration and Nationality Act, Section 212(e), foreign physicians who receive graduate level medical training in the US in J-1 status will generally be required to reside in their home country or country of last residence for two years in aggregate before they are eligible to apply for most immigrant or nonimmigrant visas or change or adjust status within the US.
If a foreign physician wishes to remain and work in the US, they will require a waiver of the foreign residency requirement. Depending on an individual's circumstances, a waiver may be available based on persecution in their home country or exceptional hardship to a qualifying relative. If these avenues are unavailable, then the physician might consider agreeing to practice in a medically underserved area for three years, in H-1b status. Contact us or schedule a confidential consultation today to discuss your J-1 visa waiver process.
This can be done through the sponsorship of an Interested Government Agency (IGA), which recommends a waiver to the Department of State based on an offer of employment at a specific health care facility serving an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) or serving patients who reside in a HPSA, MUA, or MUP. The Health Resources and Services Administration has a tool for searching for HPSA scores.
Qualifying facilities are typically required to show that they accept medicare and medicate, and serve patients who don't have the ability to pay for treatment. IGAs also look for evidence that the facility has been conducting position and site-specific recruitment and have been unable to find qualified, willing, US physicians. The IGA may ask for the site's payer mix data to demonstrate that populations in need are being served by the practice. Contact us or schedule a confidential consultation to review the best option for a J-1 visa waiver.
IGAs also generally require an employment contract that may have program specific requirements. Typically, non-compete agreements are prohibited, and competitive wages for the area are required.
Conrad 30 Waiver
Each state has 30 physician waivers to grant to qualifying practitioners each year, through the Conrad 30 program. Under the program, each state governs the application process, including filing deadlines and windows of availability. It is critical to plan ahead with an employer and a knowledgeable practitioner to ensure the application is prepared while waivers area available. These programs are typically first come, first served. Program priorities may favor some specialties over others, based on the area's need.
HHS Exchange Visitor Program
The HHS Waiver is available to primary care physicians. This program has no filing deadline and no application fee. It is also not numerically limited like the Conrad 30 programs. The physician must have completed their residency no more than 12 months prior to the start date on the employment contract.
DS 3035
In order to request the waiver, the physician applicant must submit Form DS-3035 to the Department of State. From there, the employer, physician, and attorney will coordinate to submit the program's required documents and evidence to the IGA, along with a copy of the DS-3035. Once the IGA issues a waiver recommendation, that will be transmitted to the Department of State, which will review the total application. If the waiver is recommended by the Department of State, USCIS will make the final determination on whether to grant the waiver or deny it.
H-1b
If the waiver is granted, then the employer will need to petition USCIS on the physician's behalf for H-1b status. Physicians will want to ensure that they are working with a cap exempt employer, such as a non-profit affiliated with an institution of higher education.
Timeline
Most programs will require that the physician begin working at the site within 90 days of the waiver being granted. Between J-1 program durations, application windows for waiver programs, and unpredictable processing times at each step, it can be difficult to time the waiver application. You will want to begin thinking about your plans well in advance of your program ending and find a committed employer that will be attentive to the entire waiver process. Our attorneys are proficient and experienced in J-1 visa waivers for physicians. Contact us or schedule a confidential consultation