22.     The J-1 and the H-1B Visas: Which is the Best Choice for Graduate Medical Training?

By Greg Siskind and Elissa Taub

International Medical Graduates typically have to make the difficult choice of entering the United States on either a J-1 or an H-1B visa to pursue graduate medical training. To some extent, the decision regarding which visa to pursue also depends on the residency program. Though most programs accept either the J-1 or the H-1B, some will only accept one or the other.

In years past, the J-1 was the dominant visa category. This started to change in the mid-1990s as programs became more open to sponsoring H-1B visas. From the institution’s perspective, the J-1 application process is far less expensive and burdensome because the J-1 program sponsor is actually the Educational Commission on Foreign Medical Graduates and not the residency program itself. H-1B visas require an institution to be the petitioner, comply with various legal requirements and pay government filing fees and attorney fees (if the application process is handled by an outside firm).

Programs responded to pressures from competing institutions and most have become much more willing to go the H-1B route. But the attractions of the H-1B visas are perhaps not as great as they once were, and many of the drawbacks of the J-1 visa for graduate medical trainees have been lessened considerably. This article discusses the current environment and compares the advantages and disadvantages of each category for the international medical graduate.

The J-1 Visa

The J-1 Visa is an exchange visitor visa.  Consequently, under Section 212(e) of the Immigration and Nationality Act, most J-1 visa holders coming to pursue graduate medical training are subjected to a foreign residence requirement upon conclusion of the J-1 program. That requirement essentially means that a doctor must return to his or her home country or country of last residency for two years or face the following three consequences:

1.       J-1s subject to 212(e) may not change non-immigrant categories within the US (i.e. applications to change categories must be made at US 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 US consulate;

3.       J-1s subject to 212(e) may not obtain permanent residency.

Physicians typically have three options when they complete their programs:

1.       Go back to their home countries or countries of last residence for two years and then reenter the US 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 US citizen or permanent resident spouse or child, or obtain a waiver based on demonstrating that the applicant will be subjected to persecution (similar to an asylum claim). Most waivers are based on working in medically underserved communities.

3.       Leave the US and reenter on a visa, like an O-1 visa for physicians with extraordinary ability in the sciences (note that this really only postpones the need to satisfy or waive 212(e)’s foreign residence requirement).

Applicants for J-1 visas must have their educational credentials certified as being equivalent to or greater than a US medical degree by the Educational Commission on Foreign Medical Graduates (ECFMG). Applicants must also pass parts 1 and 2 of the US Medical Licensing Examination (USMLE), which includes passing the Clinical Skills assessment. That assessment requires a physician applicant to go through a series of interactions with actors playing the parts of patients and health care professionals in order to test the communications skills of a doctor. English examination passage is also required. Because the clinical skills part of USMLE is only offered in the US, physicians typically need to come to the US first as visitors before coming on a J-1.

Once a physician is admitted to a training program at a teaching hospital and ECFMG has issued its certificate and a DS-2019 exchange visitor participant form, the doctor can apply for a J-1 visa at a US consulate abroad.

The H-1B Visa

H-1B physicians coming to the US to train are petitioned by the teaching hospitals rather than ECFMG. Teaching hospitals must demonstrate that they are paying the physicians the higher of the prevailing wage in the community or the actual wage paid to similarly positioned physicians at the hospital.

H-1B physicians must pass all three parts of USMLE before they can obtain an H-1B visa and must demonstrate that they have whatever type of license is required in the particular state where the training will take place. The doctor typically needs an ECFMG certification for licensure.

A petitioning employer must first file and receive approval for a Labor Condition Application (LCA) from the US Department of Labor.  Once the LCA is certified, the employer files an H-1B petition with a US Citizenship and Immigration Services (USCIS) service center. Once the H-1B petition is approved, USCIS cables its approval to the State Department, and the case soon makes it to a US consulate overseas. The physician then applies for the visa at the consulate before coming to the US.  Employers must demonstrate that they will pay the prevailing wage in the community for GMEs and maintain public access files. The hospital must typically also demonstrate that it is exempt from the annual H-1B quota of 65,000 visas because those visas are typically not available in July, when residency and fellowship programs typically begin. Most training programs are exempt because they are either run by universities or non-profit hospitals affiliated with universities.

Pluses and Minuses of the J-1 and H-1B visas

1.      Training periods

J-1 physicians can remain on the visa for up to seven years while pursuing graduate medical education. H-1B physicians can only be in that status for six years. Furthermore, if a J-1 physician obtains a waiver of 212(e), he or she can get an additional six years of H-1B training. For physicians in long subspecialty training programs, this can be critical.

2.      Exam requirements

J-1 physicians are only required to pass the first two parts of USMLE. The third part can be dealt with after the physician is already in the US as a J-1. H-1B doctors, however, must pass all three parts of USMLE prior to getting the visa.

3.      H-1B requirements

The H-1B cap noted above is a serious problem for many H-1B physicians in graduate medical training. While doctors are usually not subject to the quota when they enter training programs, because the programs are run by universities or non-profit employers affiliated with universities, doctors do become subject to the cap when they find their first post-training job. Often, there are no visas available at that time, and in years when demand for H-1Bs is especially strong, cap-subject H-1Bs may not be available for as long as 15 months after completing training. That can result in physicians having to limit their job search to positions at non-profit employers and university hospitals.

4.      Costs

While physicians don’t have to bear the filing costs for H-1B petitions, the employing petitioner typically needs to consider costs, particularly during this time of tight budget constraints.  H-1B USCIS filing fees are typically anywhere from $820 to $3320 depending on the type of employer and the speed of processing chosen and a few hundred dollars for the visa fee at the consulate. Outside attorneys are often needed for H-1Bs and this can add a few thousand dollars to the process as well. There is a significantly lower price tag for J-1 visas.  For J-1s, hospitals typically do not need to use an outside law firm, and the government filing fees are just a few hundred dollars for the consular visa fee.

5.      For-profit training programs

As noted above, for-profit hospitals running training programs are not exempt from the H-1B cap. The J-1 visa does not restrict for-profit employers and they are eligible to hire doctors using that visa.

6.       Ease of administration

Hospitals hiring J-1 doctors do not have to sponsor the doctors for their visas. That is ECFMG’s task. While hospitals need to comply with ECFMG rules for their doctors to get ECFMG sponsorship, this is generally not as onerous as the requirements that apply to H-1B employers. Hospitals using the H-1B category to hire a physician must file a LCA with the Department of Labor and then an I-129 petition with USCIS.

7.       J-1 Waiver headaches

The chief reason doctors used to avoid the J-1 in years past was the need to get a waiver of the two year home residency requirement to remain in the US. That meant finding a qualifying job in a shortage location, finding a waiver program willing to sponsor (and most were only willing to sponsor primary care doctors), having a waiver slot available and having an H-1B number available to convert to after the waiver was approved. The environment has changed considerably over the last decade. A much larger number of communities qualify as shortage areas eligible for J-1 sponsorship, states can now sponsor up to ten doctors a year working on “flex” slots in non-shortage area locations, most state and federal waiver programs now sponsor specialists for waivers, and H-1B cap exemptions are available to J-1 doctors receiving waivers based on working in shortage areas or VA hospitals.

Nevertheless, if a physician is interested in working for an H-1B cap exempt employer and is not running out of H-1B time, being free of the J-1 home residency requirement is an advantage.

8.       Spouses and children

J-2 spouses of J-1 physicians can receive an employment authorization document that allows most types of employment as long as the J-1 spouse remains in J-1 status. H-4 spouses are not granted employment authorization.

J-2 spouses and children are subject to a home residency requirement along with the J-1. That means that even if the J-1 goes home, the J-2 is not off the hook for the home residency requirement until the J-1 has finished meeting the residency test.

9.      Timing

Physicians looking to remain in the US following their training can face challenges switching in a timely matter to their first post-training position, depending on the visa chosen.  Those on J-1 visas need to get a waiver of the home residency requirement and then switch in to H-1B status and that process can often take well over six months to complete (though it is also possible to get it done a few months fast than this depending on the government agency sponsoring the waiver and how quickly the State Department is approving its recommendations.

H-1B transfers can often be done in a matter of weeks. The key factor is usually whether an H-1B visa quota number is available. If not, doctors may end up waiting many additional months.

H-1B doctors running short on time left in H-1B status may also need to find post-training employers willing to start green card processing shortly after starting those jobs or even, when possible, while the doctor is still in training (this assumes 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 of his or her six years of H-1B time left when the PERM labor certification application or the I-140 immigrant visa petition is filed, it may be possible to extend H-1B status as needed until green card processing is finished. If less than a year remains, the doctor could face having to stop work for several months.

J-1 doctors are also restricted in how much of the green card process can progress while they are in their J-1 waiver service period.  They can go through the PERM labor certification process and also file an I-140 petition. They cannot file for adjustment of status until their three year service period is completed. H-1B track physicians can file for permanent residency as soon as they have their license in place and are qualified to begin the post-training job.

10.   Dual Intent

H-1Bs are “dual intent” visas, and a consular officer or USCIS official cannot deny the petition because of concerns that the doctor will immigrate to the US. That is not the case for J-1s. In reality, most J-1 applications are not denied over this issue, but physicians still need to make the case that they intend to leave the US when their J-1 time is over.

11.   Contracts

J-1 waiver programs come with numerous contract requirements that some physicians and employers may find onerous. Contracts need to be for three years or more, specify that the physician will be employed at least forty hours per week in an underserved area. Many programs also require employers to strip out restrictive covenants, agree to post sliding fee scales and drop “without cause” termination clauses. Doctors may also have to sign liquidated damages provisions that require the payment of financial penalties if a doctor leaves the underserved community.  H-1B cases do not require contracts at all and other than the requirement to pay the prevailing wage, employers and doctors have a lot of flexibility in structuring the employment relationship.

Conclusion

There is no clear winner in the bout between the J-1 and the H-1B visa, but the J-1 visa has certainly made a comeback in recent years as many of the worst problems with the J-1 waiver program have been addressed. But the H-1B still has attractions that may make it the logical choice for some doctors. The unknown question at this point is how changes being considered by Congress would affect the decision-making process. Those changes might include providing H-1B cap exemptions for doctors taking jobs in shortage areas and providing more J-1 slots. Furthermore, the H-1B program in general is under attack, and USCIS and Congress are imposing more and more restrictions on the category. How these changes will affect doctors is not yet entirely clear, but will certainly bear close monitoring.