VISA SPOTLIGHT: J-1 HOME RESIDENCY REQUIREMENT WAIVERS FOR PHYSICIANS

In the years following the Second World War, the United States Congress created a visa category to promote the exchange of cultural information between the US and countries around the world. What has evolved since this time is the J-1 visa category for exchange visitors. The program is administered by the United States Information Agency ("USIA"). The program is used to bring in a wide variety of visitors including, but not limited to, university scholars, au pairs, camp counselors, artists and entertainers and physicians entering residency programs or pursuing research. Because the J-1 program is designed to promote US foreign aid objectives, the Congress was concerned that visitors should return to their home countries where their skills might be needed. Consequently, many J-1 visa holders are subject to a requirement that they return to their home country for a period of two years following the termination of their J-1 status. The rule prevents many J-1 visa holders from receiving H or L non-immigrant status or permanent resident status.

The rule applies to several types of J-1 visa holders including those who come to the US or acquired J status to receive "graduate medical education or training." While this covers many MDs, it does not cover doctors who have engaged in research, teaching, consultation, or non-clinically oriented training with only incidental patient contact.

Fortunately, the home residency requirement is not absolute. Waivers are available if certain circumstances are met. While certain J-1 visitors receive waivers on the basis of a "no objection" letter from the visitor’s country of nationality or last permanent residence, this option is not available to foreign physicians. One option that is available and that is the most commonly utilized waiver category is receiving a statement from a US government agency or a State deparment of health to the USIA that granting a waiver is in the public interest. Such requests are rarely denied since the supporting agency is arguing that its interests will be damaged if the visitor departs the US.

Another option that is available is where the J-1 visa holder’s US citizen or permanent resident spouse or child would face exceptional hardship if the waiver is denied. Hardship to the J-1 visitor is not considered relevant. The applicant must be able to demonstrate a hardship both if the spouse and/or child are separated AND if the spouse and/or child must live for two years in the visitor’s home country. These waivers are tough to get, but one’s chances are generally improved if severe financial or medical hardship would result. The emotional burden of separation is not normally considered adequate.

Finally, a waiver is available if the J-1 visa holder can demonstrate that he or she will face persecution if forced to return to his or her home country. The standard of proof is higher in this case than for asylum so applicants should carefully consider applying for asylum instead. However, given the drastic changes in the asylum program (see the article on this subject earlier in this issue), this option may seem more attractive.

As stated above, most physicians seeking a waiver pursue the interested government agency option. Several agencies will write support letters for physicians who agree to provide primary care to rural or impoverished areas designated as Health Provider Shortage Areas (HPSAs). Agencies that offer such programs include the United States Department of Agriculture ("USDA"), the Appalachian Regional Commission ("ARC"), the United States Department of Veterans Affairs ("VA")and the United States Department of Housing and Urban Development ("HUD"). A new program lets state departments of health set up a program to sponsor up to twenty physicians per year for physicians working in HPSAs.

Recently, such waivers have come under fire from, among others, Donna Shalala, the Secretary of Health and Human Services. Many federal agencies are reconsidering such programs. For example, HUD, which for a period last year did not issue waiver letters at all, no longer processes waivers in ARC states. USDA is considering abolishing their entire waiver program. The USIA is considering banning physicians from applying for waivers from more than one agency at a time.

There are also other routes to getting an agency waiver. For example, physicians engaged in important research might be able to get an agency such as the National Institutes of Health to write a support letter. Any federal agency can write a support letter. Does a particular federal agency loan or grant money to the physician’s employer? Does the agency have a large number of employees who are patient’s of the physician’s clinic or hospital? Does an agency have a policy interest in the success of the physician’s employer or organization?

The procedure for receiving a waiver varies depending on the type of waiver sought. The different federal agencies have varying procedures and requirements for securing a waiver letter. Many are quite complex and restrictive and several have waiver review boards. If the agency grants the waiver, then it sends it directly to the USIA which, in turn, recommends a waiver to the Immigration and Naturalization Service. The INS then issues the waiver to the applicant. If a waiver is based on hardship or persecution, application is made to the INS on Form I-612 along with all of the supporting evidence.

Physicians are advised to note that recent changes in the law make it much easier to come to the US to pursue a residency program under an H-1B visa rather than the J-1 visa. While many residency programs prefer the J-1 visa since it is easier and cheaper to administrate, the H-1B visa is usually the better option for the physician since no home residency requirement is involved.