Remaining in the U.S. After Residency or Fellowship Training: Exploring the Basics for Physicians with J-1 or H-1B Visa Status.

Foreign Physician's Immigration Toolkit
Monday, July 14, 2014 - 2:30pm
Jan Pederson, Shareholder

International Medical Graduates (IMGs) are foreign born physicians who graduated from a non-U.S. or non-Canadian medical school. Currently, over a quarter of physicians practicing in the U.S. are IMGs. IMGs must obtain work authorization through an applicable visa in order to be able to practice in the U.S. The most commonly used visa categories for IMGs are the J-1 Exchange Visitor visa and the H-1B Specialty Occupation visa.

The J-1 Exchange Visitor visa typically includes a requirement that the IMG return to their home country upon conclusion of their U.S. medical training. There are, however circumstances where a waiver of this requirement may be obtained, including through their work in a so-called qualified position or “J-1 Waiver job”. IMGs working in the U.S. on J-1 visas vs. other non-immigrant visas, has increased from roughly 50% to 80% over the past several years, thus, the competition for J-1 waiver jobs has intensified. IMGs on J-1 visas who wish to pursue careers in the U.S. after their residency or fellowship ends must either find employment which qualifies them for a waiver of the 2 year home residency requirement or qualify for a waiver due to hardship or persecution.

J-1 Physicians

J-1 Physicians are IMGs who undertake graduate medical training in U.S. pursuant to J-1 visa status. J-1 Physicians are normally limited to seven years in training, but can also obtain an extension of J-1 status to take specialty board examinations.
There are three types of J-1 waivers of the two year home residency requirement for which physicians are eligible:

  1. federal and State 30 interested government agency waivers (known as IGA waivers),
  2. hardship waivers and,
  3. persecution waivers.

IGA Waivers:

An Interested Government Agency waiver (IGA waiver) may be granted by any federal agency or state department of health to a physician who intends to work for at least three years in a medically underserved area, or in a FLEX slot, in some cases. The federal agencies which most commonly grant waivers are the Appalachian Regional Commission, the Delta Regional Authority,the Veterans Administration and the Department of Health and Human Services . All federal agencies are authorized to grant an unlimited number of waivers year round—they never close. However, most have restrictions of which the J-1 physician should be aware. For example, the ARC grants waivers within its geographical territory only to primary care physicians located in Health Professional Shortage Areas (HPSAs). The Delta Regional Authority grants waivers within its geographical territory to physicians in all medical specialties located in either a HPSA, a medically underserved area (MUA) or to a medically underserved population (MUP). The VA grants waivers at all its facilities in all geographical areas in all medical specialties. The HHS is the most limited in that it limits employers to a few categories which include federally funded community health centers (FQHCs); certified Rural Health Clinics and certain Indian Health Clinics and it limits waivers to primary care physicians.

Each state department of health (including the District of Columbia, Puerto Rico, Guam, the Virgin Islands and the Northern Mariana Islands) can grant up to thirty J-1 physician waivers per year to any physician who agrees to work full-time for three years in a medically underserved area or in a FLEX area. FLEX slots are awarded, at the sole discretion of the state department of health, to physicians who will not work in an underserved area but who will treat patients who live in underserved areas. States may use up to ten of their thirty slots for FLEX waivers. The FLEX slots are often used for university medical centers, as well as other areas which show an unusually high medical need for a medical specialty. All J-1 waivers are awarded based on the fiscal year; from October 1 through September 30. An increasing number of states who have historically not used their annual allotment of thirty waiver slots are using the slots earlier in the fiscal year so it is important to file waiver applications as early as possible. While the federal statute requires only that a physician agree to work full-time in any medical specialty for three years in order to qualify for a State 30 waiver, each state is free to impose additional requirements and there are many variations among the states. It is important to check the application cycle for the state, the types of medical specialties which are given priority, the pre-filing employer recruitment requirements and the historical availability of waiver slots for the state where you are interested in working.

As a physician can have only one interested government waiver pending at a time and can only have one waiver it is particularly important that a physician begin looking for a job as early as possible and to perform due diligence on the waiver job before signing the employment contract.

While a physician can have only one IGA waiver pending at a time, it is possible to apply for a hardship and/or persecution waiver at the same time as an IGA waiver is pending. The caveat is that the physician is stuck with the waiver which is granted by the Department of State first and there is generally only one waiver per customer. IGA waivers must be sponsored by an employer and the waiver application can generally only be filed for the fiscal year during which the physician will be available to work. A J-1 physician waiver application is initially filed by the prospective employer with the state department of health in the state where the job is located if a State 30 waiver, or with the interested federal government agency if a federal IGA waiver. The waiver is then recommended by the state department of health or federal agency to the Department of State Waiver Review Division. If approved by the Department of State, it is forwarded to USCIS for approval. Once the waiver is granted and the physician has worked for three years for the waiver employer, the physician is free to work for any employer or be self-employed, provided the departure does not interfere with the green card process.

Hardship Waiver

Hardship waivers are available to physicians whose American citizen or permanent resident spouse or children will suffer exceptional hardship under two separate analysis; first if the exceptional hardship to the qualifying relatives would occur if the qualifying relatives remained behind in the United States while the J-1 physician returned home for two years and secondly, if the exceptional hardship to the qualifying relatives would occur if the latter returned to the home country of the physician for two years. Factors given weight are pre-existing mental or psychological issues of the qualifying relatives; physical illnesses of the qualifying relatives which cannot be treated in the home country; the political conditions in the home country; and mentally or educationally disabled children. With the demise of DOMA, same-sex American citizen or permanent resident relatives can qualify for hardship waivers. Country conditions such as those which exist in Iran, Syria, Iraq, and Afghanistan form a solid basis for a hardship waiver where the J-1 physician would be required to return to those countries. The advantage of the hardship waiver over the interested government agency waivers is that the J-1 physician can apply for the waiver at any time during training and if the waiver is denied, the physician can continue in J-1 status and the denial does not prejudice application for any other waiver. The other main advantage is that there is no requirement to work in an underserved area at all and application for a green card can be made immediately, if otherwise eligible. The disadvantage is that hardship waivers typically take longer to process than IGA waivers and if granted and a bridging work visa is required, such as an H-1B, the employer must be exempt from the H-1B cap and the J-1 physician must depart and apply for an H1B visa abroad and return. A hardship waiver is initially filed with the USCIS California Service Center (CSC). If the CSC finds exceptional hardship and approves the waiver, it is forwarded to the Department of State Waiver Review Division for a concurring opinion. If the Department of State approves the waiver, it is returned to USCIS for approval.

Persecution Waivers:

Persecution waivers are available to physicians who have a fear of persecution if they return to their home country. The “home country” is defined as the country who issued the Statement of Need for the J-1 training program. One need not have any qualifying relative; only a fear of persecution on one of the protected grounds. The advantage of the persecution waiver over interested government agency waivers is that the J-1 physician can apply for the waiver at any time during training and if the waiver is denied, the physician can continue in J-1 status and the denial does not prejudice application for any other waiver. The other main advantage is that there is no requirement to work in an underserved area at all and application for a green card can be made immediately, if otherwise eligible. If the persecution waiver is granted, and an H-1B visa is required, the employer must be exempt from the H-1B cap and the J-1 physician must depart and apply for an H-1B abroad and return. A persecution waiver is initially filed with the USCIS California Service Center (CSC). If the CSC finds persecution and approves the waiver, it is forwarded to the Department of State Waiver Review Division for a concurring opinion. If the Department of State approves the waiver, it is returned to USCIS for final approval. While processing times vary greatly and depend on the country where persecution is claimed, they generally take two to eight months. This waiver is often used by gay and lesbian physicians. Currently, Syrian physician persecution waivers are generally approved within a few months. This waiver is also available to persons who have naturalized in a third country but obtained a letter of need from a country where they fear persecution. For example, a physician born in Iran who became a German citizen and provided a letter of need from the Minister of Health in Iran who fears persecution on one of the protected grounds in Iran would be eligible for a persecution waiver. The same person would not be eligible for political asylum. The key differences between IGA waivers, hardship waivers and persecution waivers are illustrated here.

Notes from Experience: It is important that even if you believe your J-1 waiver and H-1B will be granted before the end of your training program, normally on June 30th of the last year of training, that you obtain an extension of your J-1 status to take your board exam before the waiver is approved. Recently, the Department of State has refused to permit program extensions for several physicians who had to tack on time to the end of their training due to absences from training for maternity leave and illnesses. This resulted in a situation where the physicians have been unable to complete training and become board eligible. In both cases, the unexpected maternity leave and illness occurred after the waiver was granted. The physicians were saved when the fellowship programs agreed to undertake a complicated scenario to switch the physicians to a concurrent H-1B status for the few missing weeks of training.

J-1 Issues Which Will be Explored at the Conference

  • How do I find a good waiver job?
  • What happens If I lose my waiver job?
  • Do I need a waiver if I do not finish residency?
  • What options are there to stay in America if I don’t get a waiver?
  • What are danger signs with prospective employers?
  • How do I transfer jobs during the waiver commitment?

H-1B Physicians

Historically, IMGs working in the U.S. in H-1B visa status believed they had the “better” of the available training visas compared to J-1 physicians. Accordingly, many physicians chose their training programs based on whether the program offered H-1B visas. However, the H-1B visa has its own challenges to consider when selecting among visas. The H-1B visa is limited to six years, unless a waiver of the six year limit in continuous H-1B status is obtained. For physicians who undertake both residency and fellowship training in H-1B status, hitting the six year limit can be challenging and problematic. There are several ways to waive the six year limit which we will explore in greater detail at the conference. The search for a waiver of the six year limit should begin no later than the beginning of the fourth year of training. The general ways in which the limit can be waived include filing a PERM labor certification application or an I-140 employment based petition (EB1 extraordinary ability, EB2 NYSDOT, EB2 NIW Physician or EB2 PERM) at least 365 days before the six year anniversary in H-1B status or have an I-140 petition approved (can be less than a year). With a pending PERM or I-140 petition the six year limit can be waived and H-1B status extended in one year increments. With an I-140 petition approval, the H-1B status can be extended in three year increments if the only reason an I-485 green card application cannot be filed is because of oversubscribed per country limits (persons born in India or China).
Another challenge for the H-1B physician is locating a post-training employer who is exempt from the annual limit of 85,000 H-1B visas per year. Most H-1B physicians in training benefit from the cap exemption of their employer; however when they leave training the cap exemption is lost and the scramble to locate a cap exempt employer begins in earnest. Some examples of cap exempt employers include university teaching hospitals; non-profit entities affiliated with an institution of higher education; research institutions; some for profit employers where the physician will perform services at a non-profit institution affiliated with an institution of higher education.

An advantage of H-1B physician training status is that after training, one can work for any qualifying employer in any location and can change employment at will and begin new employment upon the filing of the H-1B petition. Another advantage is there is no waiting for a green card if the country immigrant visa quota is current. In some instances you can immediately go from the H-1B training status to a green card status depending on timing.

If the employer is subject to the H-1B cap and the annual H-1B quota of 85,000 H-1B visas continues to be oversubscribed, the employer must file the H-1B visa petition on April 1 for employment to commence the following October 1, assuming the employer wins the H-1B lottery held in April each year. If the H-1B lottery is won, there will likely be an employment gap between the day training is completed, usually on June 30th and October 1. There is no grace period on H-1B and there is no cap gap grant of employment authorization as there is for F-1 students who are completing practical training.
As one is required to have a full and unrestricted medical license in order to file a post-training H-1B petition, licensure issues are a consideration for both H-1B and J-1 physicians as many states will not issue a medical license until residency training is completed. This issue will be explored at the conference in detail.

On the horizon is a great change which will permit spouses of H-1B physicians in H-4 visa status to work. The regulation is currently pending and is expected to be implemented in the near future.

H-1B Issues Which Will Be Explored at the Conference

  • How to avoid the six year limit in H-1B status.
  • How to find an employer who is exempt from the annual limit of 65,000 H-1B visas per year.
  • How to beat the cap gap.
  • Options if you don’t win an H-1B visa in the annual H-1B visa lottery.
  • Timing and medical license issues in H-1B status