One of the most difficult challenges facing the American health care system today is a growing shortage of physicians across a wide spectrum of medical specialties. The problem is particularly acute in rural areas, though urban areas throughout the country are facing serious shortages as well.

One of the solutions Congress has crafted to deal with the problem is to allow international medical graduates seeking medical training in the US on J-1 visas to remain in the US and work in medically underserved communities. In exchange for the opportunity to practice medicine in the US, physicians agree to work for three years or more in the particular community that sponsors them for a waiver of their J-1 home residency requirement.

But sometimes all does not work out for a physician in a particular community and the physician requests a transfer to another community. Failure to get approved for a change can be particularly serious since a physician can become subject again to a home residency requirement.

The question of when a physician can legally switch employers when they have received a waiver of a J-1 home residency requirement under Section 214(l) of the Immigration and Nationality Act is one that has rarely been addressed by the INS/BCIS or the courts. Recently, however, the INS/BCIS issued a decision addressing when a physician's changing employers meets the "extenuating circumstances" test.  And in this case, the physician was successful.

DC immigration lawyer Montserrat Miller appealed an INS denial of an H-1B transfer case for a physician seeking to work for Southeastern Pediatric and Adolescent Medicine, a clinic in Milwaukee, Wisconsin. It petitioned for a physician to work at the clinic on an H-1B visa, but the change of status application was denied because the petitioner, according to the INS/BCIS, had failed to establish that extenuating circumstances prevented the beneficiary from completing his obligatory three year service period with his previous employer.

The three year requirement is based a requirement that a physician agree to serve three years in an underserved area before seeking permanent residency or a change of non-immigrant status. Under Section 214(l)(1)(B) of the Immigration and Nationality Act, however, the INS/BCIS may exercise discretion and excuse an early termination of the three year employment period if there are extenuating circumstances. Extenuating circumstances may include, according to the INS/BCIS, closure of the facility or hardship to the alien. Other bases for excusing the three year requirement may also be submitted.

In its decision, the AAO noted that the INS/BCIS shall base its decision on documentary evidence proving the extenuating circumstances and also evidence that the hardship was caused by unforeseen circumstances beyond the physician's control.

In this case, the physician claimed that the first employer was not paying the physician the salary promised in the contract. The salary promised was $80,000 per year. But the employer was paying just $34,888 per year. The physician's attorney argued that the failure to pay the promised salary caused the physician an extreme hardship and constituted extenuating circumstances that prevented the doctor from completing his three year employment period.

The physician presented several items to the INS/BCIS including a copy of the contract with the initial employer, the Labor Condition Application, payroll documentation and a copy of a lawsuit filed against the employer for failing to pay the salary promised.

The AAO ruled in favor of the physician stating that the failure to pay the physician less than half of the promised salary was enough to show extenuating  circumstances prevented the physician from completing the contracted three-year period of employment.

While the decision in this case is limited to the specific facts presented, it does reveal that an employer's material breach of an employment agreement can be constitute "extenuating circumstances" that would justify a change in status.