Stephen M. Perlitsh P.C.

49 West 45th Street, Floor 6

New York, NY 10036

Phone: (212) 840-3878

Fax: (917) 510-0872

16. J-1 Waiver Memorandum

Procedure For Obtaining a Waiver of the Two Year Foreign Residency Requirement

Based on an Offer of Employment at a Facility in a Health Professional Shortage Area

Physicians entering the United States with a J-1 (Exchange Visitor) visa must return to their home country for two years after the completion of training, unless the physician has obtained a waiver of the two-year foreign residency requirement, which encumbers the J-1 status. A waiver can be requested, if the physician is able to obtain employment as a physician performing primary care at a facility or practice located in an area designated by the United States Department of Health and Human Services (hereinafter referred to as "HHS") as a Health Professional Shortage Area (hereinafter referred to as "HPSA")or Medically Underserved Area (MUA). It may be possible to process a waiver for certain specialties, but it varies from State to State.

The Department of Veteran Affairs will process waivers for positions at its facilities and the Appalachian Regional Commission will process waivers for positions located in territories under its jurisdiction. All waivers require that the physician serve at the location for a minimum duration of three years.

Under the "Conrad 30" program, each state can process 30 waivers per year. Not all states are participating. Some states may require a four-year commitment.

Under the HHS J-1 Waiver program, the HPSA/MUA area must have a score of 14 or above, and the sponsoring facility must be a Federally Designated Health Center, a Rural Health Clinic, or a Native American/Alaskan native medical facility. Initially, the program was open to all J-1 physicians obtain a position in a HPSA or MUA without the aforementioned restrictions. The program, which was initially a replacement for the USDA and HUD programs, is now a mere shell of what it was to have been.

In February 2002, the USDA ceased accepting new J-1 waiver applications. On August 30, 1996, the Department of Housing and Urban Development ceased accepting waiver applications for positions in urban areas. The program remains closed.

The waiver application takes several months to process. The preliminary step to filing the waiver application with an Interested Government Agency is to obtain a file number from the United States Department of State. After the number has been obtained, documentation establishing that the position is located in a HPSA location, together with a detailed letter describing the need for a physician at the facility, the health conditions being treated at the facility, the efforts that the facility has made to recruit a physician in the United States and the qualifications of the physician are submitted to the agency, together with additional data and information, including an employment agreement. Each agency and each State has its own waiver policy, procedures and requirements. For example, some programs will require that the prospective employer establish that they had engaged in a recruitment effort for at least six months prior to filing the waiver application. Additionally, the USDA required a statement and documentation as to how and when the prospective employer and physician met, among other requirements.

If the Agency supports the application, they will recommend to the United States Department of State--the organization that issued the Form DS-2019, the initial form which lead to the J-1--that a Waiver be granted. The State Department will recommend to the USCIS that a waiver be granted. USCIS will then issue an approval notice confirming that the waiver has been approved. The approval of the waiver will specify that the physician must be employed by the employer specified in the waiver application for a period of three years, in H-1B status. The approval of the waiver does not confer Employment Authorization or Permanent Resident Status on the physician.

Legislation awaiting signature by President Bush will allow interested government agencies to process waivers for physicians practicing in specialties. The legislation will also allow the physician to file for a waiver based upon employment at a facility that is not itself in a HPSA but services patients who reside in one or more geographic areas designated as HPSA locations. Each state is limited to only approving five such waiver application. The remaining 25 slots will remain available to traditional state 30 waiver applications, namely physicians who are employed in HPSAs.

There is no exact science as to when the H-1B process should be commenced. Many factors come into play. The USCIS will not grant a change of status to H-1B status by a J-1 waiver applicant, unless the waiver application has been approved. The H-1B petition cannot be filed more than 6 months before the commencement of employment. Generally, this office commences the H-1B processing once the waiver has been approved by the initial Interested Government Agency and forwarded to the United States Department of State. Factors such as the expiration date of the DS-2019 and the status of the license will impact on the timing. The H-1B cap is a factor for some physicians who receive J-1 waivers. Legislation awaiting signature from President Bush will exempt from the H-1B cap physicians who have been granted a waiver of the J-1 2 year foreign residency requirement as requested by an interested federal agency or interested state agency. Accordingly, the H-1B cap should no longer be a burden on physicians granted J-1 waivers to work in HPSA locations.

If the physician is legally in the United States, in a valid non-immigrant status, the H-1B petition should be approved with a change of status to H-1B status. Prior to November 19, 2001, if the physician was out of status, they may have been able to obtain an H-1B visa at a consulate outside their home country, if they were to be employed at a HPSA and if the waiver application was submitted to the Interested Government Agency prior to the expiration of the J-1 status. There was no guarantee that the consulate would issue the visa. They may have required that the H-1B visa application be presented at the U.S. Consulate office in the physician’s home country. This option is much more difficult, due to policies resulting from the September 11^th terrorist attacks. Please consult with an attorney prior to considering this option. Once the visa is issued by the US Consulate, the physician can commence employment for the designated employer. See attached memos regarding H-1B Petitions.

If a physician passed combinations of the FLEX and USMLE examinations, the H-1B petition should not be approved, even if the combinations are acceptable for licensure and even if the physician is aware of USCIS approving these cases in the past. However, Immigrant Visa Petitions can be approved, even with combinations of examinations, as long as the other requirements are met. (Go figure!) This point is only helpful to individuals who are not in J-1 status, since all J-1 waiver candidates will have to convert to H-1B status.

The physician will have to be employed by the sponsoring facility for three years in H-1B status before the physician can file an application to adjust status to Resident Alien status, based upon an approved Labor Certification and accompanying petition, or an “Immediate Relative” petition. The Application for Adjustment of Status may be filed sooner, if the physician has an approved “National Interest Waiver.” Please see the annexed memos regarding Labor Certification and National Interest Waivers.

It is recommended that the physician not remain in the United States more than six months passed the thirty day grace period of the expired DS-2019, as to do so may bar return to the United States from three to ten years, even if the physician will be working in a HPSA. The present USCIS policy has been that if an individual has been given D/S, (Duration of Status) on their I-94, this provision may not apply. However, I prefer not to rely on it, if possible. As of this writing, U.S. Consulates in Mexico and Canada has been issuing H-1B visas to nationals of foreign countries. However, do not depart the United States to apply for a visa without discussing this with an attorney. This policy can change with or without notice. The policy varies on a case by case basis. The security clearance required for the nationals of the 26 designated countries may also be a factor in issuance of a visa at any Consulate.

Once the Waiver Application is received by the U.S. Department of State, an DS-2019 may not be extended. If possible, it is strongly recommended that the DS-2019 be extended for as long as possible. The ECFMG allows for an extension to cover sitting for Board Examinations. The extension will allow the physician to remain legally in the United States for the period of extension, plus thirty days. An extension for board examination is not supposed to subject the physician to the two year foreign residency requirement again, even if it is issued subsequent to approval of the waiver. However, I strongly recommended that the physician, if possible, avoid that situation. The ECFMG may require proof that the physician is sitting for the exam. There is only a 30 day grace period to remain in the United States, after your DS-2019 expires. Once your waiver has been forwarded to the Department of state, you should not extend your DS2019, as it may make you subject to the two year foreign residency requirement all over again, thereby requiring another waiver application

Options leading to Resident alien status can be commenced while the waiver process is in progress or at any time thereafter. Most parties will want to wait for the waiver to be approved and employment is commenced in H-1b status, before starting employment based cases

New York State law prohibits the issuance of a full license to a physician who is not a citizen or permanent resident of the United States. However, the physician would qualify for a Limited License if they will be employed at a facility located in a HPSA. This license is not to be confused with the Limited Permit. A Limited License gives the physician the same authority as the full license, except it is restricted to a specific Medically Underserved Area. The Limited License is valid for three years, but individuals who ha ve been granted J-1 waivers can get a two year extension.

On November 12, 1999, President Clinton signed a bill reinstating the National Interest Waiver as an option for physicians employed in HPSAs, MUAs or VA facilities. In 1998, USCIS had revised their previous policy of automatically approving “National Interest” petitions for physicians that were based on employment in a HPSA, MUA or VA facility. This revision made it extremely difficult to get an NIW petition approved. The new Bill carves a specific exemption for certain physicians employed in HPSAs, MUAs or VA facilities. See the annexed memo regarding the National Interest Waiver.

Other options for Permanent Resident Status, including the Labor Certification process, and Family based petitions, remain available. However, with these options, the final step leading to Resident Alien Status, the filing of an Application for Adjustment of Status, or the interview at a U.S. Consulate, if consular processing is sought, cannot be done until after the physician has completed their obligation of being employed for three years at the waiver location.

If the J-1 waiver beneficiary is married to a U.S. Citizen, or is the beneficiary of a family preference petition with a current priority date, the physician will have to remain employed with the J-1 sponsor for three years pursuant to H-1B status, before filing an Application for Resident Alien Status.

If you are planning to marry a non-U.S. Citizen or non-Permanent Resident of the United States, or come from a country where traditionally, marriages are arranged by your family, it is imperative that you marry prior to obtaining Permanent Resident status. If this applies to you, please discuss immediately.

If an employer is “for profit,” as part of the Petition for Permanent Resident Status, USCIS may require the submission of the employer's federal tax return, or a financial statement, in order to verify that the employer has sufficient funds to pay the wages to the prospective employee. USCIS may not approve the case based on a representation that the new employee will increase revenues.

The entire process, from Waiver through Permanent Resident Status, is long and involved. It should be commenced as early as possible.

Medically Underserved Areas may qualify as appropriate locations for processing J-1 Waivers, according to some of the Interested Government Agencies. However, substantial additional documentation may be required.

Unfortunately, problems can develop between the J-1 waiver beneficiary and the employer. These problems include, but are not limited to, salary issues and medical ethics issues, requiring services to be rendered beyond the hours and locations listed on the J1 waiver and H-1B petition. If this situation occurs, you should contact your attorney to discuss the procedures for processing your J-1 Waiver and H-1B Petition.

The Delta Regional Commission is being established to process waiver applications for states in the Delta region. It is the newest J-1 waiver program. It will open up numerous opportunities for individuals finding positions in the states located in the Delta region. Those states are: Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri and Tennessee.

Last update: December 1, 2004