Immigration
Doctors and the J-1 Visa
By Dilip Patel and Yova Borovska
We have the pleasure of representing physicians as well as health care organizations with all legal matters, including immigration. We have received an increasing amount of inquiries regarding physician J-1 visas and the two-year home residency requirement (“HRR”). The following article was prepared by my law partner Yova Borovska who has substantial experience with these matters, including processing several “Conrad 30” J-1 waivers available in Florida last year.
The J-1 visa is for exchange visitors in various categories. Foreign national physicians can use the J-1 visa for full-time medical training, such as a fellowship and a residency. The HRR applies if a physician engages in patient care services training pursuant to the J-1 visa program. The HRR can apply to individuals in other situations, which are not discussed in this article.
What is the HRR?
The HRR is a mechanism to promote the exchange of knowledge and culture by requiring certain J-1 exchange visitors to return to their country of nationality or last residence after completing program. Because physicians who completed their fellowship or training in the U.S. are subject to the HRR, they should review their options for future employment and residency in the U.S.
What is the effect of the HRR?
Individuals subject to the HRR cannot obtain temporary worker (H), intracompany transferee (L) or fiancé(e)/spouse (K) visas. This includes the H-1B visa, which is the most common visa type for professional workers. Individuals are also ineligible to apply for permanent residence in the U.S. and they cannot change their visa status in the U.S., with the exception of diplomatic visa (A) and international organization employee visa (G) status.
How to overcome the HRR?
The simplest way to overcome the HRR is to return to the “home” country for an aggregate period of two years. Physicians also have the option to apply for a “waiver” of the HRR, if eligible, relieving them from the requirement to return home.
Individuals subject to the HRR may also obtain a visa type that is not included in the above-referenced prohibition (i.e. other than H, L, K or permanent residence). Under this scenario, the physician will continue to be subject to the HRR for purposes of H, L, K visas and permanent residence. Some examples of alternate visa types include the following: O-1, TN, E-3, F-1, humanitarian.
A unique “loophole” exists for Canadian citizens who are able to enter the U.S. in H or L visa status even when subject to the HRR, but they too still remain subject to it for purposes of applying for permanent residence and K visas.
What type of waivers are available to physicians subject to the HRR due to their participation in a J-1 clinical training program?
Physicians subject to the HRR due to their clinical training in the U.S. are only eligible for certain types of waivers. Their HRR cannot be waived through the No Objection waiver process. Instead, they can only pursue a waiver through one of the following means:
- Interested Government Agency (IGA) – any federal agency can serve as an IGA, but most agencies have unique and rigorous requirements. Examples include the U.S. Department of Health and Human Services, Department of Defense, Department of Veterans Affairs, Delta Regional Authority and the Appalachian Regional Commission. There is a new IGA that covers the state of Florida, called the Southeast Crescent Regional Commission. Most of these require three-year service at the sponsoring facility located in a Healthcare Professional Shortage Area (HPSA), in addition to other eligibility requirements.
- State Health Department – the “Conrad 30” waiver is available to physicians in shortage or underserved areas who commit to a three-year service period involving full-time direct patient care. This type of waiver is administered by each state health department and there is a limit of 30 slots per year.
- Exceptional hardship – this waiver requires a showing of exceptional hardship to a U.S. citizen or lawful permanent resident spouse or child of the physician.
- Persecution – this waiver requires the applicant to show that they will experience persecution by a foreign government on account of race, religion, or political opinion.
Determining the best option requires a unique case-by-case analysis and is critical to ensuring a positive outcome. Further, there are time-sensitive considerations as many of these options are subject to varying timelines and moving parts. Therefore, we always recommend that physicians who are subject to the HRR seek advice from a qualified immigration attorney before proceeding with any of the options discussed in this article.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]