J-1 Visas - J Waivers of Physicians
by Greg Siskind
We now turn attention to the rules and regulations concerning foreign physicians, and the programs designed to securing J-1 visas for them.
Most graduates of foreign medical schools who come to the US to pursue graduate medical training or education do so with 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 30 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 primary care 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.
Delta Regional Authority (DRA)
The Delta Regional Authority is a new government agency with its headquarters in Clarksdale , Mississippi . It serves a 240 county/parish area in an eight state region comprising parts of Mississippi , Louisiana , Alabama , Arkansas , Tennessee , Kentucky , Missouri , and Illinois . The DRA program is available to primary care and sub-specialty physicians. The DRA is committed to helping all residents of the Delta region to have access to quality, affordable healthcare as a core part of the regionís economic development. It is with this in mind that the DRA will sponsor J-1 physicians. Physicians seeking a waiver must commit to providing medical care for three years or more, for not less than forty hours per week in a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) in a DRA county. Additionally, there is a $3000 fee to apply for the DRA program.
Department of Health and Human Services (HHS)
HHS will sponsor physicians for waivers of the home residency requirement. HHS has two distinct waiver programs. The first is not based on the location where the physician will be employed, but, rather, on the nature of the physicianís work. Indeed, for an HHS researcher 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.
The second HHS program is available to primary care physicians working in underserved areas. Primary care training must be completed within a year or applying so that will largely eliminate people progressing towards specialization from using the HHS program.
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 30 Programs
The Conrad State 30 programs allow states to sponsor up to 30 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.
Also, each state is allowed to use five of its waivers each year to sponsor physicians who will be employed outside of federally designated shortage areas if they can demonstrate that they will be serving the residents of shortage areas. However, not every state has chosen to utilize these "Flex Five" slots.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org
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