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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

The ABCs of Immigration - J Waivers
by Greg Siskind and Amy Ballentine

This weekís big immigration news is the termination of the United States Department of Agricultureís J-1 visa waiver program. This was one of the most popular waiver programs for foreign physicians, with an average of 400 waivers issued each year over the past eight years. In this article, we review the other waiver options that remain available.

Most graduates of foreign medical schools who come to the US to pursue graduate medical training or education do so on a J-1 visa. This category is highly regulated, and anyone who receives graduate medical education on a J-1 visa is automatically subject to the two-year home residency requirement. However, only those programs that involve providing health care services to patients are considered graduate medical education. Programs that involve only observing, consulting, researching or teaching with no patient care are not considered medical education. Because the only program sponsor for foreign medical graduate students who will be involved in more than incidental patient contact is the Educational Commission for Foreign Medical Graduates (ECFMG), if a person is sponsored by the ECFMG, they are likely subject to the home residency requirement.

Without a waiver of the home residency requirement, the physician is not eligible to apply for a change within the US to a non-immigrant visa, any change to permanent residence, or any change to an H or L non-immigrant visa. This two-year period must be spent in the alienís home country, or the country in which they last permanently resided before coming to the US. Because this restriction is placed on nearly every foreign medical graduate, the demand for waivers is quite high.

Most foreign medical graduates pursue waivers based on their profession, but they are not limited to this. They can pursue waivers based on exceptional hardship to a US citizen or permanent resident spouse or child, or based on the claim that they would face persecution based on race, religion or political opinion in their home country. Waivers based on a letter of no objection from the alienís home country are not available to physicians. Extreme hardship and persecution based waivers are difficult to obtain because of the high level of proof required, and many physicians simply will not have a case that fits the requirements. This leaves them with waivers based on a request from an interested government agency. There are a number of agencies that will sponsor waivers, as well as the Conrad State 20 program.

Appalachian Regional Commission (ARC)

The ARC is a joint federal-state program dedicated to improving the quality of life for people living in Appalachia. As part of this mission, it will recommend waivers for physicians. The waiver request must be sponsored by a state within ARC (Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia and West Virginia), and must include a written recommendation by the governor of the state. The place of employment must be located in a Health Professional Shortage Area within ARC territory (the only state that is entirely within ARC is West Virginia; in the other 12 states, only portions of the state are ARC designated). The physician must agree to work for a minimum of three years, at a minimum of 40 hours a week, and the employment contract cannot include any restrictions on the physicianís future practice.

The request must be accompanied by evidence that the employer has made reasonable efforts to recruit a US physician for the position within the past six months. At a minimum, the recruitment should include advertisements in national medical journals and job opportunity notices at all medical schools in the state of employment.

The physician must be licensed to practice medicine in the state of employment, and must have completed a residency in family practice, general pediatrics, obstetrics, general internal medicine, or psychiatry. Also, the facility at which the physician will be employed must show that it provides medical care to people without regard to their ability to pay or whether payment will be made by Medicare or Medicaid. The facility must also use a sliding fee scale for people at or below 200 percent of the poverty level. A public notice containing this information must be posted.

Department of Health and Human Services (HHS)

HHS will sponsor physicians for waivers of the home residency requirement. The HHS waiver is not based on the location where the physician will be employed, but on the nature of the physicianís work. Indeed, for an HHS waiver, providing care to a medically underserved area is not a factor. Essentially, HHS requires the physician to be involved in a program of national public interest and to be essential to the programís continuance. It is very difficult for physicians who will be employed by a private practice to obtain an HHS waiver, and because of the requirement that the physician be involved in a program, most physicians will need to be engaged in a research project to qualify.

Veterans Administration (VA)

The VA will sponsor foreign medical graduate if the loss of the physician would require the discontinuance of a program. Evidence of unsuccessful efforts to recruit US workers must be included. The individual VA facility will make the initial waiver request to a regional VA director. The request must include documentation of the recruitment efforts, which must include copies of advertisements placed in national medical journals. It should also include a letter from the facility director describing the proposed employment and how employment of the foreign physician will help the facility address patient care needs. Finally, the application should include evidence regarding the physicianís qualifications.

Waivers from the VA have become more difficult to obtain over recent years. For example, physicians working on O visas must have the O visa for two years before the VA will sponsor the J waiver.

Conrad State 20 Programs

The Conrad State 20 programs allow states to sponsor up to 20 foreign medical graduates for a waiver of the home residency requirement each year. While each state can regulate the program as it sees fit, there are some elements that are the same for each state. The employment location must be in a HPSA and the contract must be for a minimum of three years, at 40 hours a week. Some states will sponsor specialists, but the vast majority of positions are available only to physicians who will be doing primary care.

The following states do not participate in the State 20 program:

1. California

2. Idaho

3. Kansas

4. Oklahoma

5. Oregon

6. Texas

7. Wyoming

The following states and territories do participate:

1. Alabama

2. Alaska

3. Arizona

4. Arkansas

5. Colorado

6. Connecticut

7. Delaware

8. District of Columbia

9. Florida

10. Georgia

11. Guam

12. Hawaii

13. Illinois

14. Indiana

15. Iowa

16. Kentucky

17. Louisiana

18. Maine

19. Maryland

20. Massachusetts

21. Michigan

22. Minnesota

23. Mississippi

24. Missouri

25. Nebraska

26. Nevada

27. New Hampshire

28. New Jersey

29. New Mexico

30. New York

31. North Carolina

32. North Dakota

33. Ohio

34. Pennsylvania

35. Rhode Island

36. South Carolina

37. South Dakota

38. Tennessee

39. Utah

40. Vermont

41. Virginia

42. Washington

43. West Virginia


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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