ABCs of Immigration: The J-1 and H-1B Visas: Which is the Best Choice for Graduate Medical Training?

Posted on: October 23rd, 2017
Share on FacebookTweet about this on TwitterEmail this to someoneShare on Google+Pin on PinterestShare on StumbleUponShare on TumblrShare on RedditShare on LinkedInPrint this page

ABCs of Immigration: The J-1 and H-1B Visas: Which is the Best Choice for Graduate Medical Training?

 

[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Elissa Taub, The Physician Immigration Handbook.]

A difficult decision awaits International Medical Graduates (IMGs) whether to enter the United States on a J-1 visa or H-1B visa in order to pursue graduate medical training. This decision can have a tremendous influence on a physician’s career, so having a comprehensive knowledge of the advantages and disadvantages of each visa category is important for doctors wanting to enter into either visa category.

The residency program can be very determinant of whether or not to enter the United States on a J-1 or H-1B visa. Though a number of programs do accept either J-1 or H-1B, there are also a number which exclusively accept one or the other. Programs limiting the choices generally permit J-1, which reflects why 80 percent of IMGs coming into the United States are on J-1 visas compared to H-1B visas.

The J-1 visa has long been the dominant category for most IMGs coming to the United States, making the recent surge in the program’s popularity a return to the past. Though the J-1 has always been the preferred option, in the mid-1990s a great deal of teaching hospitals began sponsoring H-1B visas, responding to pressure from competing institutions which were receiving requests from physicians to sponsor H-1Bs. By 2005, almost half of all physicians entering the country were doing so on H-1Bs.

Within the last decade, the marketplace has significantly changed as physicians became more aware of the oft overlooked drawbacks of the H-1B. These drawbacks, coupled with considerable weakening of drawbacks of the J-1 visa program for graduate medical trainees have caused most to question the superiority of the H-1B program.

What are requirements for and restrictions on the J-1 visa?

The J-1 visa is an exchange visitor visa, therefore under §212(e) of the Immigration and Nationality Act (INA) most J-1 visa holders pursuing graduate medical training will have to meet the foreign-residence requirement after finishing the J-1 program. This requirement entails a doctor’s return to his or her home country or country of last residence for two years or else face one of the following three consequences:

  1. J-1s subject to INA §212(e) may not change nonimmigrant categories within the United States (i.e., applicants to change categories must be made at U.S. consulates abroad);
  2. J-1 visa holders subject to §212(e) are ineligible to receive an H-1B or L-1 visa stamp at a U.S. consulate; and
  3. J-1s subject to §212(e) may not obtain lawful permanent resident status.

Upon completion of their programs, physicians generally have three options:

  1. Return to their home countries or countries of last residence for two years, then re-enter the United States on a work visa;
  2. Pursue a waiver of §212(e) by receiving the support of a federal agency or a state health agency (typically based on an agreement to work in a medically underserved community), obtain a waiver based on an exceptional hardship to a U.S. citizen or permanent resident spouse or child, or obtain a waiver based on demonstrating that the application will be subjected to persecution (similar to an asylum claim). Most waivers are based on working in medically underserved areas; and
  3. Leave the United States and re-enter on a visa like an O-1 visa for physicians with extraordinary ability in the sciences (note that that this only postpones the need to satisfy or waive §212(e)’s foreign residency requirement).

The Educational Commission for Foreign Medical Graduates (ECFMG) must certify J-1 applicants’ educational credentials as being equivalent or greater than a U.S. medical degree. Applicants are also required to pass parts 1 and 2 of the U.S. Medical Licensing Examination (USMLE), including the Clinical Skills assessment. Part of this assessment requires the physician to go through a series of interactions with actors playing the parts of patients and health care professionals, testing the doctor’s communication skills. Passing an English examination is also a requirement. Physicians generally enter the United States as visitors prior to entering on a J-1, because the clinical skills portion of the USMLE is offered exclusively in the country.

The physician is permitted to apply for a J-1 visa at a U.S. consulate abroad upon admission into a training program at a teaching hospital and ECFMG’s issuance of its certificate and a Form DS-2019.

What is required of physicians interested in the H-1B visa?

It is the responsibility of teaching hospitals to petition for H-1B visas for physicians coming to the United States for training, not the responsibility of ECFMG. It is required that teaching hospitals demonstrate that the wage paid to the physicians is the higher amount between the prevailing wage in the community and the actual wage paid to similarly positioned physicians at the hospital.

H-1B physicians must successfully complete all three sections of USMLE before obtaining an H-1B visa and demonstrate their possession of the license required by the particular state in which the training will take place. For licensure, the physician typically needs an ECFMG certification.

First, applicants and their petitioning hospitals must file Form ETA 9035, the Labor Condition Application, with the U.S. Department of Labor and receive approval. They must then file an H-1B petition with a United States Citizenship and Immigration Services (USCIS) regional service center. USCIS will then send its approval to the U.S. Department of State, with the case soon going to an oversea U.S. consulate, where the physician then applies for a visa. It is the employer’s responsibility to demonstrate that they are paying the prevailing wage in the community for graduate medical education and maintain public access files. The hospital is also supposed to demonstrate its exemption from the annual quota of 65,000 H-1visas, since H-1Bs are generally not available in July, which is generally when residency and fellowship programs begin. Most training programs are exempt, because universities or nonprofit hospitals either run these programs or they are affiliated with universities.

What are the advantages and disadvantages of the J-1 and H-1B visas?

  1. Training Periods

J-1 physicians are permitted to remain in the United States pursuing graduate medical training for a maximum of seven years, but H-1B physicians are granted only six years. Also, J-1 physicians who obtain a waiver of the foreign residence requirement under INA §212(e) can gain an additional six years of post-training work utilizing an H-1B visa. This can be critical for physicians in extensive subspecialty training programs.

  1. Exam Requirements


While H-1b doctors are required to successfully complete all three parts of USMLE before getting the visa, successful completion of only the first two parts are mandatory for J-1 physicians, who can complete the third once already in the country as a J-1.

  1. H-1B Quotas


The H-1B cap is an important issue for many H-1B physicians in medical training. Though generally not subject to the quota when entering training programs, which are run by universities or nonprofit employers with affiliation to universities, once physicians find their first post-training job, they become subject to the cap. Unfortunately, once this time arrives, there are usually no visas available. In fact, in years when H-1B demand is especially high, cap-subject H-1Bs may remain unavailable for as long as 15 months after training concludes. This can necessitate physicians to truncate their job searches to nonprofit employers and university hospitals.

 

  1. Costs

Though the responsibility for filing costs for H-1B petitions does not fall to physicians, the employing petitioner should consider costs, specifically in this time of tight budget constraints. To this point, J-1 visas, which have government filing fees of only a few hundred dollars and do not require outside legal aid, are significantly less expensive than their H-1B counterparts. USCIS filing fees for H-1Bs can typically vary from $820 to $3,320 dependent upon the type of employer and the chosen speed with which the petition is processed, and adding a few hundred dollars for the visa fee at the U.S. consulate and a few thousand dollars for outside attorneys which are often needed for H-1Bs make it the far more expensive alternative.

  1. For Profit Training Programs


For-profit hospitals operating training programs are subject to the H-1B cap. The J-1 visa, however, does not restrict for-profit employers, and such employers are permitted to hire doctors utilizing that visa. In recent years, for-profit hospital systems have acquired numerous nonprofit teaching hospitals, making the issue more common.

  1. Ease of Admission


Hospitals hiring J-1 doctors are not responsible for sponsoring the doctors for their visas; that is the responsibility of ECFMG. Hospitals do need to comply with ECFMG rules so that their doctors can receive ECFMG sponsorship, this compliance is generally not as stringent as the requirements applicable to H-1B employers. Hospitals using the H-1B category to hire a physician must file a Labor Condition Application with the Department of Labor and then an I-129, Petition for a Nonimmigrant Worker with USCIS.

  1. J-1 waiver Headaches


The primary motivation for doctors’ avoidance of the J-1 in the past was the necessity to get a waiver of the two-years home residency requirement in order to remain in the country. This entailed finding a qualifying job in a shortage location, finding a waiver program willing to sponsor (most were only ever willing to exclusively sponsor primary care doctors), having an available waiver slot and having an H-1B number available to convert to after approval of the waiver. This landscape is starkly different now compared to a decade ago. A much greater number of communities qualify as shortage areas which are eligible for J-1 sponsorship; states are permitted the sponsorship of up to 10 doctors a year working on “flex” slots in non-shortage areas, and H-1B cap exemptions are available for J-1 doctors receiving waivers based on working in shortage area or Veteran’s Administration hospitals.

 

These issues aside, if a doctor is interested in working for an H-1B cap-exempt employer and time is running out on the H-1B, being free of the J-1 home residency requirement is an advantage.

  1. Spouses and Children


J-2 spouses of J-1 physicians are capable of receiving an employment authorization document which permits most types of employment, contingent upon the J-1 spouse’s J-1 status maintenance. H-4 spouses of H-1B physicians, on the other hand, are not granted employment authorization. In 2015, USCIS instituted a rule which allows some H-4s to receive employment authorization, but this was only permitted after the H-1B physician spouse had applied for permanent residency and one year or longer after the I-140 application’s approval. Meeting these requirements is quite rare for H-4s with spouses in residency and fellowship programs.

 

There is a home residency requirement which applies to J-2 spouses and children in addition to the J-1. Since this is the case, even if the J-1 goes home, the J-2 is still held accountable for his or her own home residency requirement until the J-1 finishes meeting the residency test.

  1. Timing


Depending on the selected visa, physicians who wish to remain in the U.S. after the completion of their training can run into problems switching in a timely manner to their first post-training position. Individuals who are on J-1 visas must obtain a waiver of the home residency requirement and subsequently switch to H-1B status. This process which often takes in excess of six months to complete, though it is possible to reduce it by a few months depending on the government agency sponsoring the waiver and how quickly the Department of State is approving its recommendations.
H-1B transfers generally can be completed in a matter of weeks, but a key factor in determining the time line is the availability of an H-1B visa quota number. If unavailable, physicians could potentially wait many additional months.
H-1B physicians who are running out of time in H-1B status may also need to find willing post-training employers to initiate green-card processing shortly after beginning those jobs, or while the doctor is still in training if this is possible. This strategy assumes, however, that the doctor qualifies for the job based on training already completed before the green-card process begins. If a doctor has more than a year left of the six years of H-1B time left once the PERM labor certification application or the Form I-140, Immigrant Petition for Alien Worker, is filed, it could be possible to receive an extension in H-1B status until green card processing is complete. If there is less than a year remaining, it is possible for the doctor to potentially cease working for several months.
There are restrictions for J-1 doctors regarding how much of the green card process is able to progress while they are in their J-1 waiver service period. They are permitted to go through the PERM labor certification process and also file an I-140 petition. They are not allowed to file for adjustment of status until they have completed their three-year service period. Once they have their license and are qualified to begin the post-training job, physicians on the H-1B track are able to file for lawful permanent resident status.

 

  1. Dual Intent


H-1Bs are “dual intent” visas, which cannot be denied by a consular officer or USCIS official based on concerns that the individual will immigrate to the United States, but this is not the case for J-1s. In practice, J-1s are rarely denied over this issue, but physicians should still make clear their intent to leave the country after their J-1 time is complete.

  1. Contracts


With J-1 waiver programs come numerous contract requirements, which may seem onerous to physicians and employers. Contracts must be for three years or more, specify that the physician will be employed at least 40 hours a week, and be for work in an underserved area. There are also many programs which mandate employers remove restrictive covenants, agree to post sliding fee scales, and drop “without cause” termination clauses. Doctors could also be required to sign liquidated damages provisions, which require the physician to pay financial penalties if a doctor leaves an underserved community. H-1B cases do not have contractual requirements, and other than the requirement ot pay the prevailing wage, employers and doctors have a great deal of flexibility when structuring the employment relationship.

  1. Employment Flexibility


In recent years, with respect to maintaining J-1 visa status, the Department of State and ECFMG have substantially increased the difficulty of deviation from the plan of training initially agreed upon. This means that approval of transfers, program disruptions, switching back and forth from research to clinical positions, etc., are far more difficult than in the past. In contrast, the H-1B can offer greater flexibility (H-1B cap issue notwithstanding) since the primary issues are typically whether the new employment is in a specialty occupation, which is usually the case, and the position pays the appropriate wage. Additionally, with the finalization of a skilled worker regulation on January 17, 2017, the H-1B visa now has a 60-day grace period in case a doctor’s employment is prematurely terminated.

Conclusion

Though there is no definitive answer to which program is superior, the J-1 visa has made substantial steps in recent years, with many of the plaguing issues being addressed. The H-1B visa, however, still has aspects which are very favorable for some doctors. Issues currently being considered by Congress have the potential to dramatically affect a physician’s decision-making process. Among the changes being considered, providing H-1B cap extension s for doctors taking jobs in shortage areas, and providing more J-1 slots are among the highest profile. Also, the H-1B program, generally, is under attack and USCIS and Congress are imposing more and more restrictions on the category. The extent to which these changes will affect doctors is not immediately apparent, but moving forward, close attention should be paid to them.

 

Back | Index | Next

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.