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The immigration legislation signed by the President on Septmeber 30, 1996 imposes
additional restrictions on Immigration Medical Graduates (IMGs) seeking a waivers
of the two-year foreign residence requirement.
The two most common methods of avoiding this requirement are:
(1) IMGs who have passed all three parts of the U.S. Medical Licensing Examination (or an equivalent examination) prior to beginning a medical residency and followship may be sponsored for temporary professional (H-1B) visas. H-1B visas do not impose a foreign residency requirement.
(2) An IMG may obtain a waiver of the foreign residency requirement: (A) if he would be subject to persecution in his home country; (B) if his departure from the U.S. would result in exceptional hardship to his U.S. citizen or permanent resident spouse or children; or (C) if he is sponsored by an interested government agency. In practice, few waivers are granted other than through the sponsorship of an interested government agency.
Active sponsoring agencies also included the Department of Health and Human Services (HHS) for researchers and the Veterans Administration (VA) for the direct employment of IMGs when no U.S. physicians could be found to fill a particular positions.
Until 1994, the law limited sponsorship to "federal" agencies. In that year, the law was amended to create a two-year pilot program to allow state departments of public health to sponsor up to 20 IMGs (per state) annually. Unlike the federal agencies, however, which could sponsor IMGs directly for waivers and permanent residence, the state agencies could not sponsor an IMG for permanent residence until he had served a minimum of three years in the underserved area working in H-1B status.
As a result of these restrictions, the number of physicians sponsored by state agencies totals less than 100 per year while the number of IMGs sponsored by federal agencies doubled during the past year to over 1,700.
At the same time, it impose restrictions upon IMGs sponsored by a federal agency similar to those sponsored by a state health department.
Briefly, these restrictions are as follows:
1. IMGs are required to remain employed by the sponsoring facility for a minimum of three years in H-1B status. If the IMG fails to remain employed by the facility in for the full period of time (The law provides limited exceptions to this requirement.), the foreign residency requirement will be reimposed on the physician.
2. The facility must be located within a Health Professional Shortage Area (HPSA) or a Medically Underserved Area (HPSA).
3. IMGs are required to begin employment within 90 days after the granting of the waiver.
4. Any employment for another employer is prohibited.
5. An IMG who is contractually obligated to a foreign country to return home must obtain a "no objection" letter from this country in order to apply for a waiver.
Especially hard hit are IMGs pursuing HHS, VA and HUD waivers. In one way or another, the existing waiver programs of these agencies are not presently in compliance with the new law. For example, a HHS-sponsored researcher at a university medical center no longer qualifies for a J waiver unless the university in located in a HPSA or a MUA. Similarly, the VA and HUD programs typically do not require a three-year commitment. Perhaps these latter programs will be amended to comply with the new law.
In the meantime, IMGs with pending J waivers may be victims of the ancient curse: "May you live in interesting times!"
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