Nearly all foreign medical graduates (FMGs) who come to the United States for residency and training arrive under J-1 exchange program visas. The intent of these visa programs is to provide foreign medical practitioners up to date, modern training, and to have them in turn, bring these skills back to their home countries. In order to achieve this objective, all FMG J-1 visas carry a 2 year home residence requirement under INA sec. 212(e). This 2 year residence requirement prevents these visa holders from being granted permanent residence or other types of US work visas (H, L etc.) until they have either satisfied the 2 year requirement, or they have had the requirement waived.
While most foreign medical graduates pursue waivers based on their profession, they are not limited to this type of filing. They can pursue waivers based on exceptional hardship to a US citizen or permanent resident spouse or child, or based on the claim that they would face persecution based on race, religion or political opinion in their home country. Waivers based on a letter of no objection from the alien's home country are not available to physicians. Extreme hardship and persecution-based waivers are difficult to obtain because of the high level of proof required, and many physicians simply will not have a case that fits the requirements. This leaves them with waivers based on a request from an interested government agency. There are a number of agencies that will sponsor waivers, as well as the Conrad State 30 program (please see below).
One of the most commons methods of obtaining said J "waiver" is to work for a designated period of time in a designated Health Care Professional Shortage Area (HPSA) or Medically Underserved Area (MUA). State Health Departments have developed their own waiver review systems, in conjunction with federal/Dept. of State requirements.
The central goal of all Conrad State-30 J Waiver programs is improving access to primary health care. Therefore, as there are only 30 physicians per state granted the waiver per fiscal year, preference for J-1 visa waivers is usually given to physicians trained in the specialties of Family Practice, Internal Medicine, Pediatrics, and Obstetrics and Gynecology. However, non-primary care physicians who fill a well-documented community health care need, are also considered for J-1 visa waivers. These rules are defined by the States on a State by State basis. All states except Oregon, Wyoming and Idaho participate in this program.
In order to have the 2 year home residency requirement waived, the FMG must agree to work in the HPSA or MUA under a restricted H-1B. By restricted, we mean that if the FMG leaves the MUA/HPSA before the agreed to amount of time, then they lose the waiver and cannot change or adjust status in the United States. The initial H-1B will only be approved pursuant to the State 30 J Waiver Program and Dept. of State waiver recommendation (form I-612). Upon approval of the waiver request by the Dept. of State and USCIS (formerly INS), the petitioner submits an H-1B petition on behalf of the physician. He/she will work under this visa for the sponsoring hospital.
The ARC is a joint federal-state program dedicated to improving the quality of life for people living in Appalachia. As part of this mission, it will recommend waivers for primary care physicians. The waiver request must be sponsored by a state within ARC (Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia and West Virginia), and must include a written recommendation by the governor of the state. The place of employment must be located in a Health Professional Shortage Area within ARC territory (the only state that is entirely within ARC is West Virginia; in the other 12 states, only portions of the state are ARC designated). The physician must agree to work for a minimum of three years, at a minimum of 40 hours a week, and the employment contract cannot include any restrictions on the physician's future practice.
The request must be accompanied by evidence that the employer has made reasonable efforts to recruit a US physician for the position within the past six months. At a minimum, the recruitment should include advertisements in national medical journals and job opportunity notices at all medical schools in the state of employment.
The physician must be licensed to practice medicine in the state of employment, and must have completed a residency in family practice, general pediatrics, obstetrics, general internal medicine, or psychiatry. Also, the facility at which the physician will be employed must show that it provides medical care to people without regard to their ability to pay or whether payment will be made by Medicare or Medicaid. The facility must also use a sliding fee scale for people at or below 200 percent of the poverty level. A public notice containing this information must be posted.
The Delta Regional Authority is a new government agency with its headquarters in Clarksdale, Mississippi. It serves a 240 county/parish area in an eight state region comprising parts of Mississippi, Louisiana, Alabama, Arkansas, Tennessee, Kentucky, Missouri, and Illinois. The DRA program is available to primary care physicians, which includes general or family practice, general internal medicine, pediatrics, obstetrics and gynecology and psychiatry. The DRA is committed to helping all residents of the Delta region to have access to quality, affordable healthcare as a core part of the region's economic development. It is with this in mind that the DRA will sponsor J-1 physicians. Physicians seeking a waiver must commit to providing primary care for three years or more, for not less than forty hours per week in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) in a DRA county.
HHS will sponsor physicians for waivers of the home residency requirement. HHS has two quite distinct waiver programs. The first is not based on the location where the physician will be employed, but, rather, on the nature of the physician's work. Indeed, for an HHS researcher waiver, providing care to a medically underserved area is not a factor. Essentially, HHS requires the physician to be involved in a program of national public interest and to be essential to the program's continuance. It is very difficult for physicians who will be employed by a private practice to obtain an HHS waiver, and because of the requirement that the physician be involved in a program, most physicians will need to be engaged in a research project to qualify.
The second HHS program is available to primary care physicians working in underserved areas. Primary care training must be completed within a year or applying so that will largely eliminate people progressing towards specialization from using the HHS program.
The VA will sponsor foreign medical graduate if the loss of the physician would require the discontinuance of a program. Evidence of unsuccessful efforts to recruit US workers must be included. The individual VA facility will make the initial waiver request to a regional VA director. The request must include documentation of the recruitment efforts, which must include copies of advertisements placed in national medical journals. It should also include a letter from the facility director describing the proposed employment and how employment of the foreign physician will help the facility address patient care needs. Finally, the application should include evidence regarding the physician's qualifications. Waivers from the VA have become more difficult to obtain over recent years. For example, physicians working on O visas must have the O visa for two years before the VA will sponsor the J waiver.
Please contact Jeffrey B. Steinfeld, PC for a case-specific evaluation of your J Waiver case. If you live or work in the New York / New Jersey metro area, please call or email us to arrange an in-person consultation in our Hackensack, NJ office.