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J-1 VS. H-1B: WHICH IS THE RIGHT CHOICE FOR PHYSICIANS 
By Karen Weinstock
Compared to most visa categories, it has been relatively easy to obtain a J-1 visa. The main requirements for that are admission into a residency program in the US, J-1 sponsorship from the Educational Commission on Foreign Medical Graduates and passage of Steps 1 and 2 of the USMLE. Recently, however, the rules for getting a J-1 visa become much tougher. Physicians must now pass a clinical skills assessment evaluation. The evaluation is only offered in Philadelphia, Pennsylvania. Unfortunately, getting a visitor visa to come to the US for the purpose of taking the skills assessment has not been easy. And for many, the costs of taking an additional trip to the US to take the exam are prohibitive. 
 On the other hand, in order to obtain an H-1B visa, a physician must complete USMLE steps 1, 2 and 3. Completion of step 3 of the USMLE may not be required by states, at least not at the residency stage, but the INS imposes this requirement on physicians applying for an H-1B visa. In the past, the requirement was passage of the FLEX parts 1 and 2, and its equivalent today is the USMLE steps 1, 2 and 3.   
Even though some states may allow different exam combinations for licensing (such as FLEX part 1 and USMLE part 3), the INS does not recognize such combinations, and all steps of the same exams must be taken in order to comply with the INS regulations (such as FLEX 1+2 or NBME 1+2+3 or USMLE 1+2+3). 
 One key advantage of J-1 status is that spouses of J-1 visa holders may receive employment authorization from the INS. The employment authorization allows the spouse to do most types of work without a visa petition by an employer. 
From the employer's point of view, the J-1 visa is much easier. There is no Labor Condition Application to be filed with the US Department of Labor, there is no prevailing wage requirement, the INS does not need to give pre-clearance and the visa can be approved quickly. Also, there is an annual cap on H-1B visas and many physicians are unable to secure an H-1B visa in time to begin a residency program (though this has not been a great problem in the recent past since the cap was raised temporarily to 195,000 per year). 
The most notorious downside to the J-1 visas for doctors is that doctors entering to do graduate medical training are subject to a requirement that they return to their home country for at least two years before being  eligible to:
       Apply to change status from J-1 to any other non-immigrant status (it is still okay, for example, to apply for a B-2 visitor visa at a consulate) 
     Apply for an H or L non-immigrant visa (though some lawyers say an exact reading of the law allows one to reenter the US on another visa and then apply for a change of status to an H or L visa from within the US since a visa stamp would not be necessary) 
    Apply for permanent residency 
To avoid the two-year requirement, a foreign medical graduate must seek a waiver. Obtaining a waiver is usually done through an interested government agency or through service of three years in a medically underserved area. It is indeed very cumbersome and that is why many physicians prefer the H-1B visa. 
Another advantage of the H-1B visa is that the employer must pay the physician the prevailing wage, which is in most cases higher than the wage J-1 visa holders earn, since the prevailing wage is a geographic area average. 
One downside to the H-1B visa for doctors is the limit of six years in H-1B status. For a physician in a long residency program, time may run out before it is possible to get a green card. For physicians in shorter residency programs, such as internal medicine, this will be less of an issue. 
Last but not least, H-1B is a better visa for those physicians who wish to apply for permanent residency. Unlike the J-1 visa, the H-1B visa holder enjoys the “dual intent” doctrine which states that an H-1B visa cannot be denied simply because a con even in cases the applicant applied for an immigrant visa or permanent residency. 
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