The complex U.S. immigration system makes employment of Foreign Medical Graduates (FMG physicians) difficult. FMG physicians and medical employers who want their services are faced with an immigration process that can cause delays or even defeat the hire of FMG physicians if not properly followed. In addition, without the right guidance, FMG physicians can lose the opportunity of theirs lives and employers can mistakenly violate confusing immigration rules, exposing themselves to fines, penalties, and other business losses. We are here to guide you and help you realize your immigration goals with sound, easy-to-understand advice, and an efficient/streamlined approach tailored to the health care industry, so your immigration experience is smooth and stress-free.
For the J-1 physician who wishes to begin practicing medicine in the U.S. immediately after completing his or her residency or fellowship, the two-year foreign residency requirement imposed by the J-1 visa is obviously a significant drawback. Fortunately, there are options to obtain a waiver of this requirement (J-1 waiver). There are three (3) types of J-1 Waivers:
Hardship
Persecution
Interest Government Agency
J-1 holder must show that their departure from the U.S. would cause extreme hardship to their U.S. Citizen or lawful permanent resident spouse or child (“mere separation” from family is not considered to be sufficient to establish extreme hardship).
Factors that will be considered when determining exceptional hardship include economic, physical and emotional hardship, loss of employment, educational and health opportunities, etc. Hardship to spouse can include:
Where the spouse would have to disrupt their education or career;
A situation where they could not financially maintain two (2) households;
A situation where they would have to give up a medical practice to accompany spouse;
Psychological and other hardships.
The hardship waiver only applies to spouses and children. However, hardship to other family members will be given weight if there also exists hardship to a qualifying relative.
J-1 holder must demonstrate persecution based on race, religion, or political opinion if returning to the home country.
Persecution waivers are similar to asylum claims. However, in some instances, it is more difficult to prove persecution due to the subjective nature of these cases.
Interest Government Agencies (IGA) - the following are some of the Interest Government Agencies (IGA) with J-1 waiver programs and frequently asked questions - click the links below for more information.
Appalachian Regional Commission (ARC) Waiver program – The ARC is a federal-state partnership created to helping residents of Appalachia have access to quality, affordable health care serve waiver requires the foreign-born physician to practice at least 40 hours per week for a minimum period of three years at a health professional shortage area (HPSA) facility located in the Appalachian region. The Appalachian region includes Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. The ARC defines “primary care” as internal medicine, family practice, pediatrics, obstetrics and gynecology, and general psychiatry.
Conrad State 30 Waiver programs – Traditionally, only federal government agencies could sponsor foreign born physicians for J-1 waivers. However, in 1994, Senator Kent Conrad sponsored a law that created a program under which each state (plus Washington, D.C., Puerto Rico, Guam, and the U.S. Virgin Islands) could sponsor up to 30 physicians for J-1 waivers each year. In general, to be eligible for a Conrad waiver, the physician must agree to work for three (3) years in a facility located in an underserved area. States must follow federal regulations in terms of minimum requirements but have, some latitude, in establishing requirements according to their own specific needs.
Delta Regional Authority (DRA) Waiver program – The DRA is a federal-state partnership serving a 240-county/parish area in an eight-state region. Led by a Federal Co-Chairman and the governors of each participating state, the DRA is designed to remedy severe and chronic economic distress by stimulating economic development and fostering partnerships that will have a positive impact on the region’s economy.
Department of Health and Human Services (DHHS) program – In June 2003, DHHS began acting as an IGA to sponsor primary care physicians (family medicine, general internal medicine, general pediatrics, obstetrics & gynecology or general psychiatry who have completed their primary care or psychiatric residency training programs no more than 12 months before the date of commencement of employment under the contract) to work in health professional shortage areas (HPSA) with a HPSA score of 07 or higher, as determined by the DHHS’ Bureau of Primary Health Care. The DHHS has two waiver tracks – research waivers and clinical waivers. ECFMG J1 physicians must use the Clinical track to obtain a J-1 waiver.
Department of Veterans Affairs (VA) Waiver program – The VA waiver is available to physicians coming to work in facilities run by the Veterans Administration. Unlike most of the other IGA waivers, the VA waiver is not restricted to primary care physicians, nor must the facility be located in a HPSA. However, the VA will only sponsor a foreign-born physician for a J-1 waiver if the physician services are necessary for the continuation of a specific program and the VA’s efforts to fill the position with a U.S. physician have failed.
Southeast Crescent Regional Commission (SCRC) Waiver program – The SCRC Program is comprised of specific areas of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, and all of the state Florida. The physicians must provide direct patient care in their specialty fields for at least 40 hours a week or 160 hours per month for at least three years in a medically under-served area within SCRC’s congressional-mandated footprint. The SCRC program accepts waiver requests for primary care physicians and medical specialists.
IGA J-1 Waiver Comparison Chart
This rule requires some J visa holders to reside in their home country for at least two years before they may obtain an H, L or other immigrant visa to enter the U.S. or adjust their status within the U.S. You have to serve the two years in your home country or country of last habitual (permanent) residence, even if you obtain citizenship in another country.
Generally, a Waiver may be obtained through one of the following channels:
1. An Interested Government Agency (IGA) may request that the U.S. State Department waive the Foreign Residency Requirement.
2. A Waiver application based on hardship or persecution – If the J-1 status alien can establish that he/she will suffer persecution upon return to the home country, the foreign residency requirement will be waived. The threat of persecution needs to be based on one of the following three (3) grounds: a. Race b. Religion; or c. Political Opinion. Note: The alien has the burden to prove that he/she “will be subject to persecution.” The alien need not prove past persecution.
3. Health Agency Request. A designated State Health Agency or its equivalent may request a waiver on behalf of medical doctors who have been offered a full-time job with a health care facility serving an area with a shortage of medical professionals. In order to qualify for the waiver, the person must agree in writing to work at the facility for forty (40) hours per week, for a minimum of three (3) years and must begin work at the health care facility within ninety (90) days of the waive approval, and
4. Hardship – If complying with the Foreign Residency Requirements imposes exceptional hardship on the alien’s spouse or child, and the spouse or child is a U.S. citizen or permanent U.S. resident, the Foreign Residency Requirement may be waived.
It depends. Every case needs to be determined on its own merits. It is impossible to predict whether one’s J-1 Waiver request will be granted. However, a well prepared application along with strong supporting documentation will always improve your chances.
You are eligible to self-petition for either a “Persecution” or a “Hardship” Waiver. An IGA Waiver request must be made on your behalf by an interested government agency and a health agency request must be made by a State Health department or equivalent.
An IGA Waiver is obtained through sponsorship of an Interested Government Agency (IGA). Generally, the potential sponsoring IGA is a U.S. government agency that financially supports your program or has a strong interest in your area of research or study.
The amount of time required to obtain the IGA/State Health Agency recommendations depends on each IGA. After the IGA/State Health Agency recommendations are received, the State Department then reviews the case (2-3 months). The State Department then forwards its recommendation to the USCIS. The USCIS has varying review processing times.
In most situations, a J-2 Holder is not allowed to file an independent Waiver petition. If a J-2 holder obtains a divorce from the J-1 principal, however, an independent waiver petition may be possible.
Yes. You may obtain a non-immigrant visa (O, E or F visa) from a U. S. Consulate located in a foreign country. But you may not obtain an H or L visa or permanent residence until you have received either a J-1 Waiver or until you have completed the two-year foreign residency requirement. You may change from J-2 to J-1 status while in the United States; however, you may be subject to the two-year foreign residency requirement twice, once as a spouse of a J-1, and again as a J-1.
To determine your U.S. status, please refer to Forms IAP-66 and I-94. When you entered the U.S., the inspection officer will have marked “D/S” on your Form I-94. “D/S” means “Duration of Status” and indicates that your legal stay is for a certain limited period of time. The Exchange Program Period that is marked on your DS2019 determines the length of your legal stay within the U.S.
The valid period of your J-1/J-2 visa is the period during which you may enter the U.S. This differs from the maximum duration of stay for your J program which defines the longest length of stay for anyone participating under the particular J program.
It depends. You will need a new visa to re-enter the U.S. Reapplying for a J-1/J-2 visa may be risky in some countries.
Yes, you still have 30 days grace period to legally stay in the U.S.
Generally, you cannot petition for an Adjustment of Status if you have not yet met the Foreign Residency Requirement. Once you obtain a J-1 waiver, however, you may petition for an Adjustment of Status. You may also petition for an Adjustment of Status after you complete the two-year Foreign Residency Requirement. You may petition for a permanent residency visa once you begin to live in your home country, but the visa cannot be granted until the Foreign Residency Requirement is completed. You have to serve the two years in your home country or country of last habitual (permanent) residence, even if you obtain citizenship in another country.
Yes. Filing either an I-140 or an I-130 does not affect your status. Both allow you to obtain Permanent Residency Status in the future. For example, a person can obtain I-140 approval and then return to his/her home country and after completing the Foreign Residency Requirement, he/she is eligible to apply for permanent residency. Similarly, if a J-1 Waiver is granted, he/she can obtain a permanent visa (or adjust one’s status if in the U.S.) once the J-1 waiver is granted.
There is no direct relationship between a J-1 Visa and an O-1 Visa. If a J-1 holder is not able to obtain a J-1 Waiver before his/her maximum term expires, an employer may apply for an O-1 Visa on behalf of the J-1 holder and he/she may go abroad to obtain an O-1.
Completion of your waiver is based upon the date you started working in H-1B status. For example, if your H-1B approval begins July 1, 2021 but you start working on July 15, 2021, you must work until July 14, 2024 to complete your three year medical service requirement.
Your employer is the H-1B employer of record and therefore must pay you as an employee, not an independent contractor. If the employer wants to change this arrangement, then you must set up your own company and have your company file an H-1B petition. If the USCIS approves this petition (which it may not), then you will become an employee of your own company and this company can contract with your previous employer. In other words, the arrangement would be company to company, and you will be an employee of your own company.
Yes. If you are not a U. S. citizen, you must inform the USCIS on form AR-11 of each change of address. Failure to do so can affect your immigration process.
NOTE: Immigration law changes frequently. The resources and information provided on this web site are intended to help you understand basic issues involved in the immigration process and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these pages without seeking the advice of an attorney.
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J-1 Waiver Application for Waiver Review File Number – start the J-1 waiver process by applying for a waiver review file number from the Department of State
J-1 Waiver Application Online Status – find out the status of your J-1 waiver application pending at the Department of State (DOS)
Immigration case status - find out the status of your pending application at the United States Citizenship and Immigration Services (USCIS)