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Department of Veterans Affairs

June 1, 1999

HIRING OF J-1 VISA HOLDERS

1. PURPOSE: This VHA directive specified the circumstances under which VHA will petition the United States Information Agency (USIA) for a waiver of the two year home residence requirement on behalf of an exchange visitor (J-1 visa holder).
   
   A J visa means a non-immigrant visa issued pursuant to 8 U.S.C. §1101(a)(15)(J). A J-1 visa is issued to the exchange visitor.
   
   NOTE: J-2 visas are issued to the exchange visitor’s immediate family. An O-1 visa is issued to aliens with extraordinary ability in sciences, arts, education, business or athletics.
   
2. BACKGROUND: A J-1 visa is issued to foreign medical graduates to come to the United States to study and learn. The program was created in 1948 to “promote a better understanding of the United States in other countries, and to increase mutual understanding between the people of the United States and the people of other countries.” (22U.S.C. § 1431). A central tenet of this program under 8 U.S.C. §1182(e), is that the visa holder is required to return to his/her “home country for a period of two years to share with their countrymen the knowledge, experience and impressions gained during their sojourn in the United States” (62 Federal Register 28802 (1997). This requirement was imposed to prevent the program from becoming a stepping stone to immigration and to insure that exchange visitors make their new knowledge and skills available to their home countries. In exceptionally few cases, this requirement is waived in the national interest of the United States.
   
   NOTE: VHA supports the two-year home residence requirement and will request waivers of this requirement from USIA only in cases of overwhelming need. This is particularly important in light of the projected U.S. citizen physician surplus in the near future. Facilities should request waivers only as a last resort, when comprehensive efforts to attract applications from citizens and permanent residents of the United States has failed to produce a qualified candidate.
   
   VHA’s participation is completely discretionary and voluntary and may be modified or discontinued at any time. The submission of a complete waiver package to VHA Headquarters does not ensure that VHA will request a waiver from the Immigration and Naturalization Service (INS). In all instances VHA reserves the right to recommend or decline any request for a waiver.
   
3. POLICY: The local VISN director must approve all requests for J-1 visa waivers before being forwarded to VHA Headquarters. Waivers should be addressed to the Customer Advisory and Consulting Group (051) in VA Headquarters. It is VHA policy that VHA shall not act as an interested government agency on behalf of an alien who has stayed in the U.S. after their J-1 visa has expired at the time the facility request is received in Headquarters. That is, if the visa has expired, VHA will not process the request. INS determines the status of aliens. Waiver requests will only be accepted if the exchange visitor will be available for employment within four months or less. If more than four months are available, the facility should continue to recruit for citizens.
   
4. ACTIONS:
   1. A written agreement from the alien to work for VHA for a period of not less than three years must be part of the waiver package (8 U.S.C. § 1184(e)). As cited in 8 C.F.R. 212.7(c)(9)(iv)(1998), if the alien leaves before the end of the three years, the waiver is no longer in effect. The time the alien spends employed by VHA will be documented by an annual certification audit, and attested to by the facility director and network office. Aliens who fail to fulfill their 3 year commitment will be reported immediately by the facility to the appropriate INS office.
      
   2. The preferred status of an alien is 100 percent employment by VHA. However, consideration will be given to those with at least a 5/8 appointment at VHA, and 3/8 at the affiliated university. Annual documentation by the VHA Medical Center of time commensurate with the eights appointment is required.
      
   3. Prior to requesting a waiver, facilities must request a list of candidates from the Health Care Staff Development and Retention Office (HCSDRO). If HCSDRO is unable to supply candidates from their placement service, facilities must request that HCSDRO provide special recruitment assistance. Waiver requests may only be submitted after special recruitment efforts by HCSDRO have proven unsuccessful.
      
      1. Advertisements for vacant physician positions must be no older than 4 months, with interview of applicants taking place at the time of submission. Advertisements for physician positions must be placed in national journals, regardless of specialty. Advertising in a local newspaper or writitng to Deans/Chairpersons of selected universities does not constitute an adequate search, although they may be used as an adjunct to recruitment.
         
      2. Facilities are required to contact all citizen or permanent resident applicants who respond to advertisements must be contacted promptly and pursued actively by the facility. Detailed reports of contact will be included with each waiver package including reasons for rejection of U.S. citizens or permanent resident aliens. Citizens and permanent residents can be eliminated from consideration only if they lack the basic qualifications for the position.
       

      NOTE: The two-year return home requirement does not apply to O-1 visa holders. Thus, a facility need not submit a request for a waiver from this requirement. If an individual has already qualified for an O-1 visa, they can be hired by the facility after the facility files an INS Form I-129, Petition for a Nonimmigrant Worker, and receives approval from the INS.
      

   4. A request for a waiver for an individual shall only be considered if the applicant will be providing clinical care in VHA.

       

      
       
   5. REFERENCES:
      
      1. 8 U.S.C. Section 1101 (a)(15)(J)
         
      2. 8 U.S.C. Section 1182 (e)
         
      3. 8 U.S.C. Section 1184 (e)
         
      4. 22 U.S.C. Section 1431
         
      5. 62 Federal Register 28802 (1997)
         
      6. 8 C.F.R. 212.7 (c)(9)(iv) (1998)
         
      7. VHA Supplement, MP-5, Part II, Chapter 2, Change 3, Appendix 2B
      8. FOLLOW-UP RESPONSIBILITY: Chief Consultant, Acute Care SHG, is responsible for the contents of this Directive.
      9. RESCISSION: This VHA Directive will expire on June 1, 2004.
         
      Kenneth W. Kizer, M.D., M.P.H.
      Under Secretary for Health