INS PROVIDES ADDITIONAL GUIDANCE ON WAIVERS OF J-1 HOME RESIDENCY REQUIREMENT FOR DOCTORS

The INS has issued a memorandum providing new guidance on the processing of waivers of the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act. That section of the law requires foreign medical graduates entering the US on J-1 visas to work as medical residents to return to their home countries for a two year period upon completion of their J-1 status. The memorandum discusses new conditions on waiving the home residency requirement that were created under Section 622 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”).

The new requirements of IIRAIRA’s Section 622 are the following:

- the foreign doctor must submit a no objection statement from the government of his or her country of nationality or last residence abroad (home country) – unless the doctor has no contractual obligation to return to his or her home country upon completion of the residency program

- the foreign medical graduate must practice medicine at the health care facility named in the waiver application for at least three years and only in designated health professional shortage areas (a “HPSA”). The three year period need not be spent in a HPSA if the work is for a Veterans Administration facility or is research work under the direct employment of a US government agency. Failure to meet the service obligation means no change of status or permanent residence status can be granted.

- the doctor must fulfill the three-year obligation as an H-1B nonimmigrant

- the doctor must agree to start employment within 90 days of receipt of a waiver approval.

- doctors who don’t fulfill the three-year requirement again become subject to the home residency requirement unless the INS finds that leaving early was due to extenuating circumstances (such as the facility closing or hardship to the doctor). The doctor still would be required to serve the remainder of the three year period in another HPSA.

- State health departments are limited to 20 waiver sponsorships a year; federal agencies have no such limit

- The INS will now attach a memorandum to all waiver approval notices specifying the terms and conditions outlined above.

According to the memorandum, doctors granted waivers after the law went into effect on October 1, 1996 are subject to the conditions noted above even if the applications for waivers were submitted earlier.

The memorandum also addresses a little known but important provision of the law that bars doctors from changing status to an H-1B visa. Consular processing is okay. The 1996 law modified this requirement to allow doctors to change from J-1 to H-1B status if they have been granted a waiver under a federal or State 20 waiver program. Applications for waivers granted due to extreme hardship or persecution are still covered by this provision and these doctors must leave the country to get their H-1B visas.

For doctors who do not wish to re-acquire the home residency requirement due to failure to meet the three year obligation, a request needs to be submitted to the INS that includes an employment contract with another health care facility in a HPSA for the balance of the three years. If the VA was the sponsor, the new employer must also be a VA facility.

When reviewing a request to change facilities, the INS may consult with the USIA (now part of the State Department), the interested Federal agency or State Department of Public Health that acted as the waiver sponsor, or the original facility named in the waiver application.

The memorandum also interprets vague language in the statute regarding the timing of permanent residency and change of status applications. The law was not clear on whether the three year obligation must be completed before one could apply for a change of status or permanent residency or whether such applications can be held in abeyance until the three years are up. The INS memo clearly states that one cannot even apply until the three year obligation is fulfilled.

The INS mentions the law’s statement that doctors again become subject to 212(e) if their work is no longer benefiting the public. However, the agency provides no commentary on what circumstances might be covered by this provision.

The INS has indicated that it is developing formal regulations implementing Section 622, but has not stated when they expect they will be published.

The language of the addendum to be attached to waiver approvals is as follows:

ADDENDUM TO SECTION 212(e) WAIVERS GRANTED

PURSUANT TO PUB.L. 103-416 AND PUB.L. 104-208

Because of your current or prior J-1 status (J-2 for your spouse and children) as a foreign medical graduate, you are subject to the 2-year foreign residence requirement established under section 212(e) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1182(e). On the basis of a waiver request made under

____ Pub.L. 103-416 (by a State Department of Public Health) OR

____ Pub.L. 104-208 (by an interested U.S. Government Agency),

the United States Information Agency has recommended the waiving of the foreign residence requirement in your case. 

Upon consideration of the evidence of record, and on the basis of the favorable USIA recommendation, the Service grants you and your J-2 dependent family members who are subject to the 2-year foreign residence requirement a waiver of section 212(e) of the Act. If any member of your immediate family was ever subject to the 2-year foreign residence requirement because of his or her own current or prior nonimmigrant status as an exchange alien (independent of you), that family member will need to apply for a separate waiver in his or her own behalf to remove that obligation.  

Your approved waiver is subject to the following terms and conditions specified in section 214(l) of the Act:

1. Within 90 days of the date of this notice you must commence employment with the health care facility named in the request submitted to USIA within 90 days.

A. Unless paragraph B or C applies to your case, you must practice Medicine at this health care facility for at least 3 years. During this 3-year period, you may only practice medicine in geographic areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals.

B. If the United States Department of Veterans' Affairs requested the waiver in your case, you must work for the VA for at least 3 years, but you are not limited to HHS-designated shortage areas.

C. If a Federal agency requested the waiver so that the Federal Agency may employ you full-time in medical research or training, you must work for that agency in medical research or training for at least 3 years.

2. You may complete the required 3-year period of employment only as an H-1B nonimmigrant. You may not change to another nonimmigrant classification, apply for adjustment of status to lawful permanent resident, or apply for an immigrant visa, unless you have fulfilled the 3-year employment contract with the health care facility named above.

3. IF YOU DO NOT COMPLY WITH THE TERMS AND CONDITIONS IMPOSED ON THIS WAIVER, YOU AND YOUR IMMEDIATE FAMILY MEMBERS HBO WERE INCLUDED IN THE WAIVER APPLICATION WILL AGAIN BECOME SUBJECT TO THE 2-YEAR FOREIGN RESIDENCE REQUIREMENT UNDER SECTION 212(e) OF THE ACT.

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