Maggio-Kattar attorney, Jan Pederson, recently won a case at California Service Center for a physician who needed to transfer from a FLEX waiver slot job to another FLEX waiver slot job in another state for extenuating circumstances. The California Service Center issued three Requests for Evidence, raising the issues of whether the physician had demonstrated extenuating circumstances for the transfer; whether an unpaid leave of absence from the first job was to be considered a period of time in valid H-1B status; and whether the law permitted a physician to transfer from one FLEX slot to another during the three year waiver commitment period. The California Service Center determined that notwithstanding the language of Section 214(l) of the INA, it was permissible to transfer from one FLEX slot to another. They further determined that the period of stay in unpaid leave of absence permitted the physician to maintain valid H-1B status and finally that the physician had shown extenuating circumstances for the transfer.
Each state Department of Health is permitted to use up to ten of its annual thirty Conrad State 30 slots for physicians whose job location is not in an underserved area, but who will serve patients who reside in an underserved area. The determination as to whether any of the thirty slots will be used for non-underserved areas and to whom they will be granted is left entirely to the discretion each state department of health. In this case the state departments of health in both the transferor and transferee states supported the transfer. The problem arose because the section of law and regulations relating to extenuating circumstances job transfers during the three year waiver period was written before FLEX waivers came into existence. We have encouraged USCIS to amend the Adjudicator’s Field Manual to reflect the change in the law. Because the case was granted at the Service Center level, it is not published. Jan is available for consultations on waiver job transfers and can be contacted at [email protected].
A cautionary note to physicians to be certain to conduct due diligence on the job and employer before signing a waiver contract as, if the employment relationship does not work out, transferring is often uncertain and expensive. Maggio-Kattar attorneys have been active in promoting is legislation in Congress which would permit physicians to transfer during the waiver commitment through a streamlined process; permitting a transfer for any reason if the physician agrees to add a year to the waiver commitment; or without adding time to the commitment if the state department of health agrees to the transfer or other circumstances exist. This legislation would permit physicians to leave employment relationships where it is established they are not treated in accordance with the law.