J-1 WAIVERS FOR FOREIGN PHYSICIANS

I. Common waiver factors

II. Waiver Options for FMGs

• Interested Government Agencies (IGAs)
  1. Federal Interested Government Agencies
  2. Department of Health and Human Services (HHS)
  3. The Appalachian Regional Commission (ARC)
  4. Department of Veterans Affairs (VA)
  5. Delta Regional Authority (DRA)
  6. State Departments of Public Health (Conrad State 30 Program)
• Exceptional Hardship Waivers

III. Conclusion

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Foreign Medical Graduates (FMG's) who come to the US on a J visa to receive graduate medical education and training, are subject to a two year home country physical presence requirement, regardless of their nationality. FMG's cannot obtain a waiver of the two-year home residence requirement on the basis of a "no objection" statement from their home country

I. Common waiver factors

Some of the common waiver factors considered and/or requirements that must be fulfilled in order to obtain a IGA waiver are:

• Until recently, physicians had engage in "primary care" practice, defined as physicians practicing general or family practice; general internal medicine; pediatrics, obstetrics/gynecologists willing to practice in a HPSA or MUA or psychiatrists willing to work in HPSA's. Fortunately, the law now allows both state agencies and federal agencies like the Delta Regional Authority (DRA), the Appalachian regional Commission (ARC), the Veterans Administration (VA) are to sponsor specialists for J-1 waivers.
• Physician must serve the needs of a Health Professional Shortage Area, which are divided in (1) geographical area (urban or rural) (2) population groups (i.e., homeless) and (3) facilities with shortage of health professionals, or a Medically Underserved Area (MUA).
• Evidence of shortage of US qualified workers (the specifics of this requirement vary from agency to agency) through recruitment documentation.

II. Waiver Options for FMGs

FMG's have two important waiver options:

• Interested Government Agency (IGA) waivers, and
• Exceptional hardship waivers

Interested Government Agencies (IGAs)

Interested Government Agencies can be either state or federal. There are several differences between federally sponsored waivers and state waivers. For example, some of the federal programs require a statement from the FMG that s/he is not applying for any other federal/state waiver. States do not necessarily require this statement. Also, federal agencies require evidence of insufficient efforts to recruit US physicians. This is not mandatory for the states. However, many states are adopting federal regulations and their programs often have same waiver requirements.

Federal Interested Government Agencies

Department of Health and Human Services (HHS)

The HHS had only recommend waivers for foreign physicians engaged in high-level biomedical medical research, not for those practicing direct patient care. New rules are allowing the Department of Health and Human Services (HHS) to review applications from community health centers, rural hospitals and other health care providers to waive J-1 home residency requirements for foreign physicians so that they can remain in the country to practice in underserved areas. HHS makes recommendations on these requests to the State Department.

In the past, the U.S. Department of Agriculture (USDA) recommended J-1 waiver applications to allow foreign doctors to serve in rural, underserved communities outside Appalachia . USDA terminated its J-1Waiver Program on February 27, 2002 . Fortunately, with the new regulations, HHS now will take over the role formerly played by the USDA in handling applications for these J-1 waivers.

To learn about the DHHS's guidelines and requirements needed to make a waiver request, click here.

Waiver requests or general inquiries shall be directed to: Ms. Joyce E. Jones, Executive secretary, Exchange Visitor review Board, Room 627H, Hubert H. Humphrey Building, Department of Health and Human Services, 200 Independence Avenue, SW, Washington, DC 20201.

The Appalachian Regional Commission (ARC)

The jurisdiction of the ARC covers counties of the following states: Alabama , Georgia , Kentucky , Maryland , Mississippi , New York , North Carolina , Ohio , Pennsylvania , South Carolina , Tennessee , Virginia , and all of the State of West Virginia . Note that if an area falls within the ARC jurisdiction, the USDA will not recommend a waiver. Generally, waivers processed by the ARC are handled in a very expeditious manner and letters confirming that the waiver has been recommended may be received in approximately 30 days.

To learn about the ARC's guidelines and requirements needed to make a waiver recommendation, click here.

Waiver requests shall be directed to: Mrs. Laura Dean Reed, J-1 Program Assistant, ARC, 1666 Connecticut Avenue, NW , Washington , DC 20009-1068 .

Department of Veterans Affairs (VA)

Unlike other IGA's, since 1996, VA facilities are exempted from the requirement that the FMG practices in a medically underserved area.

The VA will request waivers for FMG's involved in patient care as well as research or teaching. J-1 waiver guidelines provide that the VA facility or medical center may request a waiver to the Central Office only if it is demonstrated that "the loss of the FMG's services would necessitate discontinuance of a program or major phase of it, and that recruitment efforts have failed to locate a qualified US physician for the position". In addition, the VA is required to employ the FMG's services on at least 50% basis. The VA requires a three-year contract form the FMG. The FMG's failure to comply with the three-year commitment -regardless of the circumstances- would render the waiver void.

J-1 physicians seeking a waiver are advised to contact the Human Resource person of a particular VA facility directly. The facility then sends the waiver request to the Central Office for review. The Central Office's determination in generally made within 4 to 8 weeks.

A waiver request must include:

• Letter from the VA facility's Director describing the program, the FMG's immigration status, facility's health care needs, recruitment efforts and why the waiver "would be in the public interest and the detrimental effect that would result" to the facility if the FMG could not continue.
• Recruitment efforts including copies job advertisements published within the preceding year
• FMG's curriculum vitae, copies of medical licenses, tests scores (USMLE, ECFMG, FLEX, NMBE), board certifications, visa and all IAP-66 forms.

Delta Regional Authority (DRA)

The Delta Regional Authority (DRA) is a federal-state partnership serving a 240-county/parish area in an eight-state region. The Authority serves a 230 county region in the states of Mississippi , Tennessee , Louisiana , Arkansas , Kentucky Alabama, Missouri and Illinois .

The DRA is the newest federal agency acting as an Interested Government Agency in J-1 physician waiver cases. The DRA waiver recommendation becomes very important in light of the USDA recent program termination.

State Departments of Public Health (Conrad State 30 Program)

The Immigration and Nationality Technical Corrections Act of 1994, sponsored by Senator Kent Conrad temporarily amended the Immigration and Nationality Act (INA) to permit an "interested" state department of public health or its equivalent to request up to 20 waivers for J-1 foreign physicians each year directly to US Information Agency.

On October 1999, the US Information Agency was integrated to the US Department of State, therefore the Waiver Review Division of the DOS's Bureau of Consular Affairs now reviews the J-1 waiver applications. On June 25 th, 2003 the House passed a Bill to make the Conrad "20" program into the Conrad "30".

On December 3 rd, 2004 , President Bush, signed legislation that extended and modified the “Conrad 30” J waiver program for FMGs. Some of the most significant aspects incorporated into this law are:

• The law extends the Conrad 30 programs for another two years until 2006.
• It allows each Conrad state to sponsor up to five physicians who practice medicine outside of a HPSA/MUA but whose patients are primarily located in HPSAs and MUAs.
• Foreign physicians in H-1B status who have received J waivers are exempt from the H-1B numerical cap.

Conrad State 30 waivers must include the following:

• A "no-objection" letter from FMG's home country (if medical education or training was provided by home country);
• Offer of a bona fide full-time employment in an shortage area, which FMG must assume within 90 days of obtaining the waiver. Employment contract shall be valid for at least 3 years. It should include the name and address of the facility and the specific geographic areas in which FMG will practice;
• Evidence that the area(s) stipulated in the contract are within a shortage area (HPSA);
• A statement form the physician agreeing to the contractual requirements;
• Copies of all IAP-66 forms
• Because of the numerical limitations (20 a year), each application must be numbered sequentially.

Exceptional Hardship Waivers

USCIS regulations provide that a J-1 Exchange Visitor may seek a waiver from the two year home residency requirement if departure from the US would impose exceptional hardship on J-1's US citizen or lawful permanent resident spouse and/or child . FMG's must be aware that hardship must be truly exceptional, and that such requirement makes these cases difficult to win.

Exceptional hardship waivers are first submitted to the USCIS where a preliminary determination is made. USCIS takes several months to process a waiver application. If hardship is found, the case is referred to the Waiver Review Division (WRD) of the Department of State. At this stage, the WRD seeks an opinion from the program sponsor (e.g., ECFMG). If hardship is recommended, the case moves back to the USCIS for a final decision. Applicants should be advised that this process is lengthy (it may take up to one year) and the J-1 visa is not automatically extended while a waiver application is pending, therefore careful and advance planning is highly recommended.

Some of the factors to consider when making a "exceptional hardship" allegation are: greatly reduced economic circumstances, physical and emotional hardship, educational and health opportunities. Administrative and judicial decisions provide some guidance as to when hardship is considered excessive enough for the USCIS to grant a waiver. Some examples are:

• Educational or career hardship to spouse, where spouse would have to disrupt her education (Matter of Chang, 12 I&N Dec.793 (DD 1968));
• Child hardship: when child would need surgery unavailable in home country (Matter of Santillano, 11 I&N Dec. 146. (DD 1965)).

III. CONCLUSION

FMG's on J status seeking waivers of the two-year home residency requirement must understand that there is a significant amount of work and commitment involved. Advance planning is critical in exceptional hardship cases since the evidence of hardship and supporting documentation needs to be abundant.

On the other hand, opportunities exist for those who wish to pursue a J-1 waiver. The most commonly used waiver strategy has been based on recommendations from IGAs. In such cases, FMG's are required to practice primary care medicine (in H-1B status) for at least three years in a medically underserved area. Both in state and federal waiver cases, failure to comply with the three-year requirement would result in reinstatement of the home residence requirement. However, the Attorney General may excuse this early termination due to "extenuating circumstances", like closure of the health care facility or hardship to the physician. In such a case, the physician must provide evidence establishing such a claim and an employment contract with another health care facility located in a HHS designated shortage area for the rest of the three-year period of employment. Additionally, in most cases, the FMG must remain on an H-1B status for at least three years before becoming eligible for lawful permanent residence.