1. While an I-612 J-1 waiver request is pending, is it legal to volunteer at the sponsoring entity, including patient care responsibility?
The BCIS would consider such volunteer work to be unauthorized employment if the position is normally one which would be paid.
2. Is a “no objection” certificate from the home country required for State 30 or interested government agency waivers?
A “no objection” certificate is not required for any interested government agency waiver unless an exchange visitor is “otherwise contractually bound” to return to the home country. This would apply in circumstances where the exchange visitor received home government or U.S. government funding for an exchange program. It is rare when a “no objection” letter is required.
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3. Does the State Department prohibit a physician with subspecialty training from obtaining an interested government agency waiver, even though the physician will solely render primary care services?
No. However, it is important to note that some states, like California, limit State 30 waivers and ARC waivers to physicians who do not have subspecialty training.
4. May an interested government agency waiver request be filed by a newly-established clinic?
Yes, however, it is important to ensure that the prospective employer be able to demonstrate the financial ability to pay the prevailing wage stated on the H-1B petition. The petitioning employer must agree to pay the prevailing wage at the time the physician commences employment in H-1B status. Failure to do so could trigger substantial financial penalties against the employer.
It is most advisable to investigate the business and financial situation of a prospective employer as the employment agreement binds both the employer and the employee for three years. Start-up medical clinics, without an existing patient base, are often risky. Ask questions in the community before you sign. Find out if they actually need another doctor.
The HHS will not allow a facility not yet in existence to sponsor a physician for an I-612 J waiver.
The sponsoring entity does not have to be a physician or a hospital. In fact, in many states, such as California and Texas, hospitals are prohibited from directly employing physicians.
In addition, the IGA may require the prospective owner of a clinic not yet opened to demonstrate that a lease to an office has been executed; that all arrangements for the physical plant of the clinic have been completed; that clinic staff has been hired and that the clinic is ready to open for business immediately upon the arrival of the physician.
5. The State Department Data Sheet asks the waiver applicant to state the reasons for not wishing to fulfill the two-year foreign residence requirement. What is the proper answer?
The question should be answered truthfully. Normally, the response would be, in the case of an interested government agency waiver, that the applicant wishes to pursue professional objectives.
6. When is the earliest possible time when an IGA J-1 waiver request can be filed?
Under section 622 of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), physicians must agree to commence employment within ninety (90) days of BCIS approval of the I-612 waiver. Thus, the filing of the application should be timed with this requirement in mind. In other words, the last step must be anticipated before the first step is taken.
7. May an H-1B petition be filed prior to obtaining the approval of an I-612 J-1 waiver?
Yes. An H-1B petition may be filed up to six months prior to the time when the H-1B worker will commence employment. However, the application for change of status may not be filed until the State Department issues its waiver recommendation to the BCIS.
8. Is it possible to apply for an I-612 hardship waiver and an interested government agency waiver simultaneously?
9. Is it possible to simultaneously work in a waiver position in a medically underserved area and continue graduate medical training?
As physicians are required to work at least forty (40) hours per week in a medically underserved area in conformance with the terms of a waiver, the logistics of simultaneously completing a residency would be difficult, if not impossible.
10. What are the most common problems reported by physicians and employers in the J-1 waiver employment?
Physicians complain about the lack of advanced technology and lack of other physicians to share calls in rural areas.
Employers complain that physicians do not integrate into the community, do not market themselves in the community and are not committed to working the long hours necessary to build a practice.
11. Will I be deported if my J-1 waiver employer terminates my H-1B employment?
You will become deportable unless you file an application to change to another status or to extend your H-1B status within ten days of termination of the prior employment. If the facility closes or extenuating circumstances beyond the control of the physician arise, the waiver will not be revoked, provided the three years of service in H-1B status are completed at another facility. The BCIS is the agency which grants permission to change employers during the three year period through the mechanism of adjudication of a subsequent H-1B petition. A subsequent H-1B petition must be accompanied by evidence of the closure of the facility or extenuating circumstances, an employment contract for at least the balance of the three year period, and evidence the proposed new employment is in a medically underserved area (other than employment at VA facilities).
The interested government agencies have not squarely addressed the issue of employment termination, which could have devastating immigration, financial and career consequences for the physician. The physician will have to depart from the United States to obtain a new H-1B visa if the new petition is not filed within ten days of the termination of the last employment. It is critically important that physicians carefully chose an employer to maximize the chance of success.
12. May I leave my J-1 waiver employment after completing three years of service in H-1B status?
If you are immigrating on the basis of a relative petition, you may leave your J-1 waiver employment after three years of service.
However, if you are immigrating on the basis of an employment based immigrant visa petition (either a national interest petition or individual labor certification), the obligation to continue performing the national interest work, in the case of a national interest petition; or to continue with the sponsoring employer, in the case of an individual labor certification, continues up to and for a reasonable period of time after permanent residence is granted.
13. In which countries may the two year foreign residence requirement be satisfied?
The two year foreign residence requirement may only be satisfied in the country of nationality or last permanent residence as indicated on Form IAP-66. If a citizen of one country and a permanent resident of a second country, you must satisfy the home residence requirement in the country of last permanent residence. These countries must be listed on the IAP-66. If there is an error on the IAP-66, the State Department takes the position that the BCIS, not the State Department, must correct the error, if the program sponsor will not correct the error. Note that in rare instances, the two-year foreign residency requirement may be waived because of the impossibility of compliance, such as some Palestinians with Egyptian Travel Documents.
14. If a J-1 visa holder subject to the two year foreign residence requirement returns to the home country for two years to comply with the two year home residence requirement, under what circumstances can he/she return to live in the United States.
Once the home residence requirement is satisfied, the former J-1 visa holder may return to the United States in any status and immigrate through any status (e.g. relatives, employment, investment, lottery, etc.).
It is advisable to obtain employment commitments and sponsorship commitments for H-1B visas or permanent residence before you depart from the United States, if possible, so that you have assurances you can return to employment in the United States once the two-year commitment is satisfied.
15. If both spouses are in J-1 status, is it possible for one spouse to change status to J-2?
Yes. However, BCIS frowns on this and some BCIS offices may deny such a change of status.
16. Will the spouses and children of persons issued J-1 visas or in the U.S. in J-1 status automatically be issued J-2 visas?
It should never be assumed that J-2 dependents will be issued J-2 visas because the principal alien has been issued a J-1 visa or been granted a change of status in the United States to J-1 status. Each applicant must prove to the satisfaction of the American consular officer before whom an application is made that he/she continues to maintain the principal place of residence and domicile abroad and that she/he intends to return home at the completion of the program of the J-1 principal. In many countries, it is difficult to demonstrate a spouse or child has strong ties in the home country when the principal has departed. Competent counsel should be consulted before dependents apply for J-2 visas, particularly in countries designated by the Department of State as high fraud countries, such as the Philippines, India, Pakistan and Nigeria. Also, if the principal alien entered the United States as other than a J-1 (e.g. F-1 or B-1/B-2), dependents applying in any country should obtain legal advice before applications are submitted as consular offices often deny J-2 visas to dependents when a principal changes status to J-1 after arrival in the United States.
17. May a person with J-2 status participate in a residency program with a BCIS issued work permit? Are there any time limits? Must a residency contract be filed with the work permit request?
With BCIS work authorization, the J-2 visa holder may participate in residency training or engage in any other employment. The BCIS requires that the J-2 applicant demonstrate that the funds earned from employment are not needed for and will not be used for the support of the J-1 exchange visitor.
The J-2 visa holder may obtain employment authorization as long as the relationship to the J-1 visa holder continues to exist and as long as the J-1 visa holder continues to be in lawful J-1 status. No employment contract need be filed with the request for work permission.
18. Can a person with J-2 (dependent of a J-1 physician) status, pursue university studies? Can a J-2 change status to F-1?
A dependent of a J-1 physician in lawful J-2 status may pursue part-time or full-time university studies. A person holding J-2 status cannot change to F-1 (student) status in the United States.
It is possible for the J-2 to obtain the issuance of an F-1 visa by an American consular post outside the United States and be admitted in F-1 status. However, the two year foreign residence requirement still remains and must be complied with before “H” or “L” status or permanent residence can be obtained.
If the J-2 is divorced from the J-1 or the J-1 dies, the two year foreign residence requirement will generally be waived.
19. If a J-1 physician changes status to H-1B and the J-2 spouse changes status to H-4, is there a waiting period before the H-4 spouse may change status to H-1B?
Generally no waiting period is required. However, it is advisable to consult with a knowledgeable immigration attorney before filing the application to change to H-1B status. The time period could be affected by prior representations made to government officials in connection with other petitions or applications.
20. May a spouse or child in H-4 status engage in employment?
No. He/She must separately obtain a status which permits employment such as H-1B, O-1, or L-1.
21. After being granted an interested government agency I-612 J-1 waiver by the BCIS, is it possible to apply immediately for immigrant status through a national interest petition without, for example, being in H-1B status first?
If a waiver is obtained through an interested government agency, state or federal, and BCIS approved the waiver after September 30, 1996, the current BCIS view is that the physician must work in H-1B status for three years before applying for permanent residence. However, an immigrant visa petition may be approved during the three year period; it is the application for permanent residence which cannot be filed until three years of service in H-1B status are completed.
However, through a technical legislative amendment to the law and/or BCIS interpretations, this position may change. Health care providers and their representatives have urged BCIS to permit anyone who had a waiver filed with a government agency before September 30, 1996 to process permanent residence under the old law, which did not require H-1B status or any waiting period to file for permanent residence.
We will post updates to our home page as information becomes available.
22. May the three-year time commitment in H-1B status begin the date the contract begins? May the three-year time commitment in H-1B status begin running when my H-1B petition is approved by the BCIS?
You may begin counting the three-year time commitment only when you commence employment in H-1B status. No other time period counts.
23. Is it permissible to file an H-1B petition at the same time a national interest employment-based second preference immigrant visa petition is filed?
24. Is there any way for a J-1 physician to obtain a green card other than through employment-based or family-based immigrant visa petitions?
Yes. It is possible to obtain permanent residence through political asylum or through an immigrant investor visa as well. If political asylum is granted, the two year foreign residence requirement is waived.
25. If a J-1 or J-2 visa holder wins the immigrant visa (diversity) lottery, must he or she still obtain a waiver of the two year home residence requirement in order to obtain permanent residence on the basis of winning the lottery?
Yes, a I-612 waiver must still be obtained. Even with a waiver, the J-1 physician must complete three years of service in H-1B status if the waiver is an IGA waiver. However, if a spouse who formerly held J-2 status has obtained a waiver through the J-1 principal, the J-2 with a waiver may apply for permanent residence even if the former J-1 has not completed three years of service in H-1B status. [Editor’s Note: Although neither BCIS nor the State Department has formally adopted a policy on this issue, representatives of each agency have indicated that a former J-2 with a waiver derived from the principal J-1 physician may apply for permanent residence without waiting for the former J-1 to complete three years of service in H-1B status].
26. May a J-1 visa holder obtain further extensions of J-1 status in the United States if a relative, such as a spouse or parent, files an immigrant visa petition?
Yes. The filing and approval of an immigrant visa petition is not a bar to extending J-1 status. However, the J-1 alien cannot file an application for permanent residence until the two year foreign residence requirement, if applicable, is satisfied.
27. Is it possible to obtain the approval of an O-1 petition while awaiting an I-612 interested government agency waiver? If the O-1 petition is denied, is it possible to extend the IAP-66 for a fellowship?
It is possible to obtain the approval of an O-1 petition while awaiting the approval of an I-612 waiver. While you cannot change status in the United States from J-1 to O-1, you may obtain the issuance of an O-1 visa at a U.S. consular post abroad without a waiver and be admitted to the United States in O-1 status. However, the two-year foreign residence requirement does not disappear by obtaining O-1 status; it continues to exist. O-1 petitions may be approved for three years; and may be renewed indefinitely.
Eligibility for J-1 status is not affected by the filing or approval of an O-1 petition. If otherwise eligible, the sponsorship may continue without interruption.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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