Ask the Experts

Posted on: June 15th, 2016
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In our Ask the Experts section of Healthcare Immigration News, attorney Adam Cohen answers questions sent in by our readers. If you have a question on healthcare immigration matters, please email Ask-the-Experts@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

 

1) QUESTION: I am a Foreign Physician in J-1 status. Will I Need a J-1 Waiver?

ANSWER: Physicians in J-1 visa status who enter graduate medical education or training under an ECFMG-sponsored program become subject to a two-year home residence requirement. This education or training is clinical in nature and involves patient care.

In less common cases, a physician will come to the U.S. to participate in a non-clinical exchange program, either with no patient care or contact, or where patient contact is incidental to the physician’s primary activity of teaching, research, consultation, or observation. This non-clinical J-1 physician is not automatically subject to the home residence requirement, but may be subject if (1) their program is being financed by the U.S. or foreign government, or (2) they are pursuing a field of study set forth on their countries’ Exchange Visitor Skills List.

The home residence requirement is a heavy restriction upon those physicians who are subject to it. They cannot change status in the U.S. to any other nonimmigrant status (other than the T and U humanitarian-style classifications), and they cannot apply for permanent residence. Further, they cannot apply for an immigrant visa, H visa, or L visa.

Thus, the fact that most J-1 physicians undergo clinical rather than non-clinical training, combined with the burdens of the home residence requirement, mean that most J-1 physicians will either need a J-1 waiver or will need to return home for two years.

 

2) QUESTION: I am considering a hardship or persecution based J-1 waiver. Is there any difference in applying for H-1B status after receiving this waiver versus a Conrad waiver?

ANSWER: I would first note that recipients of hardship or persecution waivers do not necessarily need H-1B status, because they have no service commitment to complete.  Still, for many physicians, an H-1B will be necessary or preferred.

The major difference for H-1B applicants between Conrad and interested government agency (IGA) J-1 waivers versus hardship or persecution waivers is that Conrad/IGA waiver recipients receive the benefit of 214(l) of the Immigration and Nationality Act. This section (1) allows changes of status within the United States from J-1 to H-1B and (2) exempts the waiver recipients from the H-1B numerical cap.

Hardship and persecution J-1 waiver recipients receive no such benefit. As strange as it sounds, in order to receive an H-1B visa if that is their goal, hardship and persecution waiver recipients may need to travel to their home country to process their H-1B visa. On a case-by-case basis, the Department of State (DOS) will evaluate whether such recipients can in fact return to receive the H-1B visa. I imagine DOS would be far more helpful if the approved waiver was based on persecution.  There may also be an option to process the H-1B in a third country, such as Canada.

Hardship and persecution J-1 waiver recipients also do not receive the benefit of automatic cap exemption in the H-1B context. As a result, they are subject to competition for the 85,000 cap numbers available each fiscal year. Since the cap has regularly been hit within the first week of April (when applications can be submitted for the upcoming fiscal year), such waiver recipients will have to enter an H-1B lottery of sorts in order to finally receive their cap number. Additionally, as the fiscal year begins on October 1st and most graduate medical programs end much earlier in June, these waiver recipients may be hard pressed to stay in the U.S. during the summer.

 

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