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J-1 Physician Frequently Asked Questions (FAQs)
by Jan M. Pederson

1. Q. How does the new H-1B legislation impact J-1 Physicians who seek to change status to H-1B status?
A. Physicians who have State 20 J-1 waivers will be exempt from the H-1B cap. It is not clear whether those with VA waivers and other federal interested government agency waivers will also be exempt. Clarification is being sought at this time.

Also, physicians working at a college or university or other nonprofit entity will be exempt from the cap. Attorney experts agree that residents and fellows training at a university affiliated teaching hospital should be exempt from the cap.

2. Q. Under the new H-1B legislation, will a physician be subject to the cap if there is a gap in H-1B employment? For example: a J-1 waiver physician is working on H-1B status in the waiver job at rural Clinic X, the clinic closes and it takes three or four months to locate a new job and file a new H-1B petition.
A. Once accorded H-1B status, gaps such as in the example will not once again subject the physician to the H-1B cap, even though the physician is out of status and will have to travel to a consular post outside the United States to apply for a new H-1B visa and/or obtain a new entry and obtain a new I-94.

Only if the physician is out of the country for a year will the physician be subject once again to the H-1B cap. However, if the physician is out of the country for a year, the six year clock begins again.

3. Q. Under the new H-1B legislation, must a physician wait until a subsequent H-1B petition is approved to begin working for the new employer? It is often taking up to four or five months to obtain the approval of a transfer H-1B petition. Often, the first employer is reluctant to put in writing the unforeseen circumstance which led to the contract termination and this is a frequent cause of delay.
A. The great news is that you may begin working for the new H-1B employer as soon as the petition is filed with INS, provided the petition is non-frivolous and there has been no unauthorized employment before or while the petition is pending.

If the petition is denied, the employment authorization ceases upon denial.

4. Q. Is there any provision in the new law for extending H-1B status beyond six years if the Department of Labor or INS delays in adjudicating my application?
A. Yes. Section 106 of the Act provides that the six year time limit is not applicable to people with I-140 employment-based immigration petitions or applications for adjustment of status (permanent residence) (I-485 form), if a year or more has passed since the labor certification was filed or the I-140 was filed.

H-1B provisions pursuant to this section may be extended pursuant to this section in one year increments until the final decision on the green card application.

5. Q. If I have a labor certification and employment based immigrant visa petition approved, and an application for adjustment of status pending, are there any circumstances where I may change employers and not lose my labor certification and I-140 approval and be required to start over again?
A. Section 106(j) of the Act provides that individuals who filed for adjustment of status (I-485) and whose cases have been pending for more than six months, may continue with their adjustment application if they switch employers or jobs as long as the new job is in the same or a similar occupational classification as the job for which the petition was filed.

[Caveat for J-1 Physicians: You must still fulfill your three years’ work in H-1B status for IGA waivers before obtaining a green card or changing sponsoring employers (unless permission is granted by INS to change waiver employers). Although there is no consensus of opinion yet, it would appear that a job switch for IGA waiver physicians may be accomplished after three years in H-1B status, if the I-485 has been pending more than six months.

This provision may eliminate the requirement of filing multiple NIW petitions when a job location changes. Keep tuned to our Website for updates on INS interpretation of how the new NIW regulations interact with the H-1B legislation.]

6. Q. If I was born in India or China where the employment-based immigrant visa quotas are backlogged, does this bill contain any provisions to assist me?
A. Yes. If the total number of visas available in the five employment-based green card categories is more than the number of applications submitted, then requirements that prevent countries from having more than 7% of the allotment of employment-based green cards will not apply. That way, immigrant visas will not go unused if there are applications pending that would otherwise be subject to the per country limit.

This section also contains a provision that says that notwithstanding the H-1B visa cap, if an H-1B visa holder is the beneficiary of an employment-based immigrant visa petition and would be subject to the per country limit, the applicant may apply for an extension of their H-1B status until the applicant’s adjustment of status case is completed.

7. Q. Will the INS approve H-1B petitions for J-1 physicians who mixed and matched credentialing exams such as FLEX, USMLE and NBME to obtain ECFMG certification and state licensure?
A. No. INS has not agreed to permit mix and match exams for H-1B clinical work except for aliens of national or international acclaim. Thus, applicants should be certain to take the exams required for H-1B petition approval. For H-1B purposes, the following are acceptable to INS: FLEX Parts I and II; or NBME Parts I, II and III; or USMLE Steps 1, 2 and 3.
8. Q. While a J-1 waiver request is pending, is it legal to volunteer at the sponsoring entity, including patient care responsibility?
A. Unpaid internships and uncompensated volunteer services do not constitute unauthorized employment, provided the services are never compensated, in our opinion, although some officials at INS have expressed disagreement.
9. Q. Is a “no objection” certificate from the home country required for State 20 or interested government agency waivers?
A. A “no objection” certificate is generally not required for any interested government agency waiver unless an exchange visitor is “otherwise contractually bound” to return to the home country. This would apply in circumstances where the exchange visitor received home government or U.S. government funding for an exchange program. It is rare when a “no objection” letter is required. However, North Carolina requires a “no objection” certificate from all State 20 applicants regardless of whether the J-1 is “otherwise contractually bound.”
10. Q. Does U.S. Department of State prohibit physicians with subspecialty training from obtaining an interested government agency waiver, even though the physician will render solely primary care services?
A. The U.S. Department of State does not have such a restriction. However, the USDA and Appalachian Regional Commission will only sponsor physicians who agree to provide primary care medical services. Neither the USIA nor any federal agency has such a restriction. It is important to note however that some states limit State 20 waivers and ARC waivers to physicians who do not have subspecialty training. Some of the states prohibiting waivers for those with subspecialty training include Alabama, Arizona, Maryland, Massachusetts, Michigan, Missouri, Ohio and Pennsylvania.

Some states even prohibit waivers for J-1 physicians who have begun, but not completed, subspecialty training.

11. Q. May an interested government agency waiver request be filed by a newly-established clinic?
A. Yes. However, it is important to ensure that the prospective employer be able to demonstrate the financial ability to pay the prevailing wage stated on the H-1B petition. The petitioning employer must agree to pay the prevailing wage at the time the physician commences employment in H-1B status. Failure to do so could trigger substantial financial penalties against the employer.

It is most advisable to investigate the business and financial situation of a prospective employer as the employment agreement binds both the employer and the employee for three years. Start-up medical clinics, without an existing patient base, are often risky. Ask questions in the community before you sign a contract. Find out if they actually need another doctor.

In addition, the IGA may require the prospective employer for a clinic not yet opened to demonstrate that a lease to an office has been executed; that all arrangements for the physical plant of the clinic have been completed; that clinic staff has been hired and that the clinic is ready to open for business immediately upon the arrival of the physician.

12. Q. The USIA Data Sheet asks the waiver applicant to state the reasons for not wishing to fulfill the two-year foreign residence requirement. What is the proper answer?
A. The question should be answered truthfully. Normally, the response would be, in the case of an interested government agency waiver, that the applicant wishes to pursue professional objectives.
13. Q. When is the earliest possible time when an IGA J-1 waiver request can be filed?
A. Physicians must agree to commence employment within ninety (90) days of INS approval of the waiver. Thus, the filing of the application should be timed with this requirement in mind. In other words, the last step must be anticipated before the first step is taken. Of course, impossibility of performance of the 90-day employment commencement rule should excuse failure to report to work within 90 days. Examples would be where the physician’s H-1B petition or license is delayed beyond the 90 days as the physician cannot legally practice medicine without H-1B status and a medical license.
14. Q. May an H-1B petition be filed prior to obtaining a J-1 waiver?
A. Yes. An H-1B petition may and should be filed up to six months prior to the time when the H-1B worker will commence employment. However, the application for change of status may not be filed until the USIA issues its waiver recommendation to INS. INS has reached the H-1B cap for the last two fiscal years during the spring, and the H-1B cap may be reached as early as December 1999 for FY 2000 (October 1, 1999 to September 30, 2000). Thus, it is important to file the H-1B petition at the earliest possible moment.
15. Q. Is it possible to apply for a hardship waiver and an interested government agency waiver simultaneously?
A. Yes. However, USIA will only grant one waiver, generally the first to be adjudicated. USIA will generally not permit you to switch from one waiver to another once they have made a favorable recommendation to INS. Note that two IGA waivers may not be pending at the same time under any circumstances.
16. Q. Is it possible to simultaneously work in a waiver position in a medically underserved area and continue graduate medical training?
A. As physicians are required to work at least forty (40) hours per week in a medically underserved area in conformance with the terms of a waiver, the logistics of simultaneously completing a residency would be difficult.
17. Q. What are the most common problems reported by physicians and employers in the J-1 waiver employment?
A. Physicians complain about the lack of advanced technology and lack of other physicians to share call in rural areas.

Employers complain that physicians do not integrate into the community, do not market themselves in the community and are not committed to working the long hours necessary to build a practice.

18. Q. Will I be deported if my J-1 interested government agency waiver employer terminates my H-1B employment?
A. You will not become deportable unless you file an application to change to another status or to extend your H-1B status within ten days of termination of the prior employment. If the employing facility closes or extenuating circumstances beyond the control of the physician arise, the waiver will not be revoked, provided the three years of service in H-1B status are completed at another facility. INS is the agency which grants permission to change employers during the three-year period through the mechanism of adjudication of a subsequent H-1B petition. A subsequent H-1B petition must be accompanied by evidence of the closure of the facility or extenuating circumstances, an employment contract for at least the balance of the three year period, and evidence the proposed new employment is in a medically underserved area or at a VA facility.

Note that some sponsoring government agencies also require permission/notice before a transfer is effected.

The interested government agencies have not squarely addressed the issue of employment termination, which could have devastating immigration, financial and career consequences for the physician. The physician will have to depart from the United States to obtain a new H-1B visa if a new petition for new employment is not filed within ten days of the termination of the last employment. It is critically important that physicians carefully choose an employer to maximize the chance of success.

19. Q. May I leave my J-1 waiver employment after completing three years of service in H-1B status?
A. If you are immigrating on the basis of a relative petition, you may leave your J-1 waiver employment after three years of service.

However, if you are immigrating on the basis of an employment based immigrant visa petition (either a national interest petition or individual labor certification), the obligation to continue performing the national interest work, in the case of a national interest petition; or to continue with the sponsoring employer, in the case of an individual labor certification, continues up to and for a reasonable period of time after permanent residence is granted.

20. Q. In which countries may the two year foreign residence requirement be satisfied?
A. The two year foreign residence requirement may only be satisfied in the country of nationality or last permanent residence as indicated on Form IAP-66. If a citizen of one country and a permanent resident of a second country, you must satisfy the home residence requirement in the country of last permanent residence. These countries must be listed on the IAP-66. If there is an error on the IAP-66, USIA takes the position that INS, not USIA, must correct the error, if the program sponsor will not correct the error. Note that in rare instances, the two-year foreign residency requirement may be waived because of impossibility of compliance where the exchange visitor has lost the home country nationality during the exchange program.
21. Q. If a J-1 visa holder subject to the two year foreign residence requirement returns to the home country for two years to comply with the two year home residence requirement, under what circumstances can he/she return to live in the United States?
A. Once the home residence requirement is satisfied, the former J-1 visa holder may return to the United States in any status and immigrate through any status (e.g. relatives, employment, investment, refugee).
22. Q. If both spouses are in J-1 status, is it possible for one spouse to change status to J-2 in the United States?
A. No. However, a J-2 visa may be obtained at an American consular post, preferably in Canada or Mexico.
23. Q. Will spouses and children of persons issued J-1 visas or in the United States in J-1 status automatically be issued J-2 visas by an American Consul?
A. It should never be assumed that J-2 dependents will be issued J-2 visas because the principal alien has been issued a J-1 visa or been granted a change of status in the United States to J-1 status. Each applicant must prove to the satisfaction of the American consular officer before whom an application is made that he/she continues to maintain the principal place of residence and domicile abroad and that she/he intends to return home at the completion of the program of the J-1 principal. In many countries, it is difficult to demonstrate a spouse or child has strong ties in the home country when the principal has departed. Competent counsel should be consulted before dependents apply for J-2 visas, particularly in countries designated by the Department of State as high fraud countries, such as the Philippines, India, Pakistan and Nigeria. Also, if the principal alien entered the United States as other than a J-1 (e.g. F-1 or B-1/B-2), dependents applying in any country should obtain legal advice before visa applications are submitted, as consular officers often deny J-2 visas to dependents where a principal changes status to J-1 after arrival in the United States.
24. Q. May a person with J-2 status participate in a residency program with an INS issued work permit? Are there any time limits? Must a residency contract be filed with the work permit request?
A. With INS work authorization, the J-2 visa holder may participate in residency training or engage in any other employment. The INS requires that the J-2 applicant demonstrate that the funds earned from employment are not needed for and will not be used for the support of the J-1 exchange visitor.

The J-2 visa holder may obtain employment authorization as long as the relationship to the J-1 visa holder continues to exist and as long as the J-1 visa holder continues to be in lawful J-1 status. No employment contract need be filed with the request for work permission.

25. Q. Can a person with J-2 (dependent of a J-1 physician) status, pursue university studies? Can a J-2 change status to F-1 (student)?
A. A dependent of a J-1 physician in lawful J-2 status may pursue part-time or full-time university studies. A person holding J-2 status cannot change to F-1 (student) status in the United States.

However, it is possible for the J-2 to obtain the issuance of an F-1 visa by an American consular post outside the United States and be admitted in F-1 status. However, the two year foreign residence requirement still remains and must be complied with before “H” or “L” status or permanent residence can be obtained.

26. Q. May a J-2 dependent obtain a waiver if the J-1 principal dies or the marriage between the J-1 and J-2 is dissolved through divorce?
A. The USIA will generally act as an interested government agency and grant a waiver to the J-2 spouse and children.
27. Q. May a spouse or child in H-4 status engage in employment?
A. No. He/She must separately obtain a status which permits employment such as H-1B or O-1.
28. Q. After being granted an interested government agency (IGA) J-1 waiver by INS, is it possible to go directly to immigrant status through a national interest petition without, for example, being in H-1B status first?
A. If a waiver is obtained through an interested federal government agency, and INS approved the waiver after September 30, 1996, and with respect to all State 20 waivers, the current INS view is that the physician must work in H-1B status for three years before applying for permanent residence. However, an immigrant visa petition may be approved at any time during the three year period; it is the application for permanent residence which cannot be filed until three years of service in H-1B status are completed.
29. Q. May the three-year time commitment in H-1B status begin the date the contract begins? May the three-year time commitment in H-1B status begin running when the H-1B petition is approved by the INS?
A. You may begin counting the three-year commitment only when you commence employment in H-1B status. No other time period counts.
30. Q. Is it permissible to file an H-1B petition at the same time a national interest employment-based second preference immigrant visa petition (NIW) is filed?
A. Yes.
31. Q. Is there any way for a J-1 physician to obtain a green card other than through employment-based or family-based immigrant visa petitions?
A. Yes. It is possible to obtain permanent residence through political asylum or through an immigrant investor visa as well. If political asylum is granted, the two year foreign residence requirement is waived.
32. Q. If a J-1 or J-2 visa holder wins the immigrant visa (diversity) lottery, must he or she still obtain a waiver of the two year home residence requirement in order to obtain permanent residence on the basis of winning the lottery?
A. Yes, a waiver must still be obtained. Even with a waiver, the J-1 physician must complete three years of service in H-1B status if the waiver is an IGA waiver. However, if a spouse who formerly held J-2 status has obtained a waiver through the J-1 principal, the J-2 with a waiver may apply for permanent residence even if the former J-1 has not completed three years of service in H-1B status. [Editor’s Note: Although neither INS nor USIA has formally adopted a policy on this issue, representatives of each agency have indicated that a former J-2 with a waiver derived from the principal J-1 physician may apply for permanent residence without waiting for the former J-1 to complete three years of service in H-1B status].
33. Q. May a J-1 visa holder obtain further extensions of J-1 status in the United States if a relative, such as a spouse or parent, files an immigrant visa petition?
A. Yes. The filing and approval of an immigrant visa petition is not a bar to extending J-1 status. However, the J-1 alien cannot file an application for permanent residence until the two year foreign residence requirement, if applicable, is satisfied.
34. Q. Is it possible to obtain the approval of an O-1 petition while awaiting an interested government agency waiver? If the O-1 petition is denied, is it possible to extend the IAP-66 for a fellowship?
A. It is possible to obtain the approval of an O-1 petition while awaiting the approval of a waiver. While you cannot change status in the United States from J-1 to O-1, you may obtain the issuance of an O-1 visa at an American consular post without a waiver and be admitted to the United States in O-1 status. However, the two-year foreign residence requirement does not disappear by obtaining O-1 status; it continues to exist. O-1 petitions may be approved for three years; renewable in one year increments indefinitely.

Eligibility for J-1 status is not affected by the filing or approval of an O-1 petition. If otherwise eligible, the sponsorship may continue without interruption.

35. Q. Will the VA sponsor waivers for physicians who have changed from J-1 to O-1 status?
A. No. However, our firm has been engaged in discussions with VA headquarters in Washington to change this policy.

Updated October 20, 2000.

About The Author

Jan Pederson, Senior Partner Pederson & Freedman, LLP


Recognized by The Washington Post as one of "seven leading lawyers" in Washington, D.C., Ms. Pederson has been dedicated to the practice of immigration and nationality law for twenty years. She has successfully represented thousands of clients and is masterful at resolving complex immigration issues. Ms. Pederson's impressive list of clients includes renowned physicians, urban and rural health care providers, Fortune 500 companies, television networks, entertainers, computer personnel and other professionals.

She also served as president of the Washington, D.C. Chapter of the American Immigration Lawyers Association (AILA) and as an elected director of the national Board of Governors of AILA for eighteen years. She has served as a chairperson of the Physicians Task Force of the AILA Board of Governors for many years and has also served as chairperson of the AILA Visa Office Liaison Committee and Refugee Committees.

She also leads efforts to effect changes in the laws to benefit J-1 physicians both in Congress, The White House and within administrative agencies.

The national media have recognized her expertise in immigration law and call upon her to comment on important issues and legislation. Ms. Pederson has been interviewed by CNN, ABC News, The Washington Post, The New York Times, The Washington Times and The Legal Times of Washington, D.C., to name a few.


Ms. Pederson graduated with honors from the University of Washington with a Bachelor of Arts degree in Economics and from Howard University with a Juris Doctor degree.

Professional and Community Associations:

American Immigration Lawyers Association (AILA)
IMMLAW: The National Consortium of Immigration Law Firms
The American Bar Association
The District of Columbia Bar
Bar Association of the District of Columbia
International Bar Association
Women's Bar Association
French-American Chamber of Commerce

Admitted to practice before the following courts:

United States Supreme Court
U.S. Court of Military Appeals
U.S. Court of Appeals for the District of Columbia Circuit
U.S. District Court for the District of Columbia
District of Columbia Court of Appeals

Articles, Books and White Papers:

Editor-in-Chief: J-1 Physician News
Editor: The Visa Processing Guide
Contributing Author: Practice Advisory, AILA Monthly Mailing
Author: Consular Processing of Nonimmigrant Visas: A Round Table Discussion
Author: Representation of Nonimmigrant Visa Applicants at American Embassies and Consulates
Author: Processing Visas for Iranian Nationals at U.S. Embassies and Consular Posts
Author: Proper Utilization of the B-1 and H Working Visas
Author: Adjustment of Status
Author: Labor Certification: Procedures and Problems
Author: The Refugee Act of 1980, An Operational Perspective
Author: Refugee and Asylum Procedures
Author: Refugee and Asylum Practice: Avoiding Discretionary Denials


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