Carl Shusterman (Former INS Attorney 1976-82) explains how International Medical Graduates (IMGs) and Canadian physicians can obtain J waivers through by demonstrating exceptional hardship or persecution if they were forced to return to their home countries for two years.
Physicians who are sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG) for J-1 status to do medical residencies and fellowships are subject to a 2 year home residence requirement. These physicians are not permitted to change to H or L status, or apply for a green card, until they have returned to their home country for at least 2 years, or until they have been granted a waiver of the 2 year home residence requirement. Waivers can be very difficult to obtain. Even doctors who marry a US Citizen cannot obtain a green card without a waiver, or satisfying the 2 year requirement.
The waivers available to J-1 physicians include interested government agency waivers, persecution waivers and hardship waivers.
It should be noted that a J-1 physician of extraordinary ability may apply for an O-1 visa without having to get a J waiver. However, the J-1 physician is not permitted to change his status from J-1 to O-1 in the US.
J-1 Waivers for Physicians – Hardship Waivers
Hardship waivers can be granted to J-1 physicians who can demonstrate that a US citizen or lawful permanent resident spouse and/or child would suffer “exceptional hardship” if he were forced to return to his home country for 2 years.
Exceptional hardship can be demonstrated through medical, psychological, financial, and educational means. The waiver must be filed with the USCIS. If USCIS finds that the spouse/child would suffer exceptional hardship if the 2 year home residence requirement is enforced, the waiver is forwarded to the US Department of State (DOS) for their opinion. If the DOS agrees that exceptional hardship exists, the application is returned to the USCIS to grant the waiver.
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“I work with Merritt Hawkins, the largest physician search firm in the United States. For over 20 years, we have partnered with The Law Offices of Carl Shusterman, which assists us in obtaining visas for the many international physicians we recruit. Mr. Shusterman and his staff have been an indispensable resource of expertise, allowing us to recruit international doctors in the most efficient manner possible on behalf of our clients.”
- Phil Miller, Merritt Hawkins, Dallas, Texas
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J-1 Waivers for Physicians – Persecution Waivers
With regard to J-1 waivers for physicians, the USCIS points out that “while certain aspects of the persecution provision under section 212(e) of the Act parallel the asylum requirements in section 208 of the Act, they differ in many respects. A waiver application under section 212(e) of the Act based on persecution is unrelated to an asylum application under section 208 of the Act. The most notable difference between the 212(e) waiver provisions based on persecution and the requirements under section 208 of the Act for asylum are the reasons for the claimed persecution and wh ether the applicant has firmly resettled in a third country. Among other things, the asylum provisions of section 208 of the Act require the applicant to establish persecution on account of race, religion, political opinion, nationality, or membership in a particular social group. Section 208 also requires an alien to show that he or she has not firmly resettled in another country. The waiver provisions of section 212(e) of the Act, however, limit claims of persecution to race, religion, or political opinio n, and do not require the applicant to establish that he or she has not firmly resettled in a third country. In addition, a waiver application under section 212(e) of the Act requires the applicant to establish that he or she would be subject to persecution upon a return to the home country, whereas an applicant under section 208 of the Act must only establish a well-founded fear of persecution. This is a higher standard than that applied to asylum claims under section 208 of the Act.”
Our law firm has assisted over 2,000 IMGs and Canadian physicians in obtaining J waivers and green cards over the past 30 years.
Information about Conrad 30 waivers and Federal government waivers is available on our J Waivers for Physicians page.
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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.