Navigating J-1 Waivers: Essential FAQs for Physicians Seeking Government Agency Waivers and Employment in the U.S

Must the job be in a medically underserved area or at a VA to obtain a clinical interested government agency waiver?

No. Each state department of health may use up to 5 of its 30 annual J-1 waiver slots to place physicians in geographic locations which are not medically underserved provided patients who reside in medically underserved areas will be treated by the physician. The slots are known as the “FLEX 5″ slots. Use of these slots is entirely within the discretion of the state department of health and states who do not use all of their 30 slots are likely to be the most receptive to using the FLEX5 slots.

If I have job offers in 3 different states, may I file 3 waiver applications with the respective state departments of health?

You may have only one IGA waiver pending at any given time. The rules of the Department of State prohibit multiple pending applications. It is advisable to consult an attorney expert in J-1 waivers before choosing among competing job offers.

Must I have a job offer as a primary care physician in order to obtain a J-1 clinical IGA waiver?

No. Both federal agencies and state departments of health may grant waivers for all medical specialties, without limitation. However neither HHS nor the ARC will grant waivers to subspecialists as a matter of policy.
Both federal agencies and state departments of health have discretion about the number and circumstances under which subspecialist waivers will be given.

Which agencies are most likely to grant waivers to specialists?

The VA, Delta Regional Authority, and almost all states. ARC and HHS will not grant specialist waivers. States which still will not grant subspecialist waivers include Wisconsin, Idaho, New Jersey, and California.

Which types of employers are the best waiver employers?

Established employers such as the VA, hospitals, community health centers, and large practice groups tend to work out best. For-profit smaller employers are more subject to fluctuations in the market place and a downturn in the firm revenues may force the employer to lay off staff. Beware of solo practitioners, particularly where the spouse is the office manager. Beware of the employer who brings you into town under cover of night and spirits you out the next morning, without having met other physicians and hospital officials. Always conduct “due diligence” on the employer before signing a contract.

How can I find a waiver job? Should I use a physician recruiter?

Clients report success in using online resources such as www.3rnet.org and www.vacareers.va.gov. Medical and professional journals and websites will also serve as a great resource in finding a waiver job. Always verify the prospective employer or the service area is eligible for a waiver. There are far more waiver jobs today than there are J-1 physicians, unlike a few years ago.

A physician recruiter is not mandatory, but can be helpful in your search; however, some recruiters may not look out for the best interest of the physician. If you choose to go with a recruiter, make certain that the recruiter is reputable.

Can I establish my own medical practice and obtain a J-1 waiver, an H-1B visa and labor certification?

Most waiver programs will not grant a J-1 waiver to an employer in which the J-1 physician has an ownership interest, although some will, depending on the fact pattern.
With respect to H-1B petitions, there is no prohibition against the H-1B worker having an ownership interest in the H-1B petitioning employer.
However, the new PERM labor certification regulations are very strict. There is an absolute prohibition from the sponsored employee being an officer, owner or director in the sponsoring employer. Nor may any close family members have an interest in the sponsoring employer.

How far in advance of my employment start date may I file a J-1 waiver and H-1B petition?

The timing of the filing of a J-1 waiver is determined by the USCIS rule that requires you to commence the waiver employment within 90 days of the waiver approval by USCIS. For example, filing a waiver application two years in advance of the start date would lead to questions about your good faith in agreeing to start work within 90 days of the waiver approval by USCIS.
An H-1B petition may be filed up to six months before the anticipated start date.

May I fulfill my J-1 waiver time commitment in a status other than H-1B, such as in O-1 or E-2 status?

No.

How does the annual H-1B cap impact J-1 physicians?

Physicians who receive either state 30 or federal interested government agency J-1 waivers are exempt from the H-1B cap.
Also, physicians working at a college, university, or an affiliated nonprofit entity are exempt from the H-1B cap. Residents and fellows training at a university affiliated teaching hospital are exempt from the cap.

Is a physician subject to the cap if there is a gap in H-1B employment, if, for example, a J-1 waivered physician is working in H-1B status in the waiver job at rural Clinic X, the clinic closes, and it takes three or four months to locate a new job and file a new H-1B petition?

J-1 waivered physicians through federal or state IGA waivers are cap exempt. However, for those physicians still subject to the cap, once counted against the H-1B cap, gaps such as those in the example will not once again subject the physician to the H-1B cap, even though the physician is out of status and will have to travel outside the United States and apply for an H-1B visa if s/he has no valid H-1B visa in the passport and/or obtain a new entry and obtain a new I-94.
If the physician changes employment from an exempt to non-exempt employer, the new petition may be subject to the cap.

Must a physician wait until a subsequent H-1B petition is approved to begin working for the new employer?

Work for the new transfer H-1B employer may commence as soon as the petition is filed with USCIS provided the petition is non-frivolous; there has been no unauthorized employment before the petition was filed; and the petition is filed before the end of the period of authorized stay in H-1B status.
If the petition is denied, the employment authorization ceases upon denial.

Caveat: J-1 waivered physicians may only terminate employment during the waiver commitment period for “extenuating circumstances.” It is necessary to consult with the waiver program to determine if they have specific, additional “transfer” policies. A support letter from the waiver agency is helpful and many State 30 and some federal programs require this as a program requirement. It is important to work with the waiver program on transfer issues.
In addition, a letter of termination from the transferor employer is most important. If such is unavailable, then separate evidence of the “extenuating circumstances” must be submitted to USCIS with the transferee H-1B petition. No separate document granting permission to transfer is issued. USCIS makes the final determination as to whether extenuating circumstances exist and such a finding is implicit in the approval of the transfer H-1B petition.

May I still “port” to a new H-1B employer if my employment with the initial H-1B employer ceases prior to the filing of an H-1B petition by the subsequent H-1B employer?

Yes, provided the initial H-1B visa petition and I-94 have not expired, and the other requirements for portability are met. USCIS has not determined whether there is a limit to how long after the employment is terminated a subsequent petition may be filed, and still permit the H-1B worker to use the portability provisions.

What are deemed by USCIS to be extenuating circumstances sufficient to approve a transfer petition?

J-1 waivered physicians working in H-1B status should consult with experienced and competent immigration counsel before a transfer petition is filed. There are very few decisions on the subject, so attorneys rely on their experience, judgment, and anecdotal evidence in advising whether a transfer petition will be approved.

Examples of “extenuating circumstances” which USCIS has approved:

• Where the employer closes the clinic for reasons not attributable to the physician.
• Where the employer fails to pay the physician the prevailing wage on the H-1B petition and Labor Condition Application.
• Where the employer will not permit the physician to work 40 hours per week in the authorized underserved area.

Caveat: USCIS denied a transfer H-1B petition on this ground in a recent case stating that the physician “acquiesced” in the work in an unauthorized area by obtaining hospital privileges, apparently ignoring the reality that an employer has the physician’s livelihood and right to live in the United States in his sole control.

Is there any provision to extend H-1B status beyond six years if the Department of Labor or USCIS delays in adjudicating an Alien Labor Certification (ALC), PERM or I-140 immigrant visa petition?

There are several circumstances in which an H-1B alien may apply for an extension of stay beyond the usual limit of six years, two of which are relevant to J-1 waivered physicians.
An H-1B alien may have his/her status extended beyond six years if:

• A labor certification application or I-140 immigrant visa petition is filed at least 365 days before the 6th year anniversary of H-1B status. The H-1B status may be extended in one year increments until permanent residence is granted or denied. The status of H-4 dependents may also be extended.
• An I-140 immigrant visa petition has been approved and the only reason an I-485 cannot be filed is the per country limit has been reached for your country (e.g. India and China).

If I have a labor certification and employment based immigrant visa petition approved, and an application for adjustment of status pending, are there any circumstances where I may change employers and not lose my labor certification and I-140 approval and be required to start over again?

Individuals who have filed for adjustment of status (I-485) based on and approved I-140 immigrant visa petition, whose I-485 application has been pending for more than 180 days, may continue with the adjustment application with a new employer as long as the new job is in the same or a similar occupational classification as the job for which the petition was filed.

Caveat for J-1 Physicians: If your adjustment application is based on an individual labor certification or a relative petition, you must still fulfill your three years’ work in H-1B status for the waiver employer before filing an I-485 application for permanent residence, or changing sponsoring employers (unless permission is granted by USCIS to change waiver employers for extenuating circumstances).
In labor certification cases, a change to the same or similar employment can be accomplished after the I-485 has been pending 180 days. There are risks to changing employers before the I-140 is approved which must be discussed with counsel.
If your permanent residence is based on an NIW I-140, which is approved and the I-485 has been pending more than 180 days at the end of the three year commitment, it is permissible to change to same or similar employment, provided the employment is in a medically underserved area or at a VA hospital for the balance of the NIW time commitment (usually five years) .

What is defined as “same or similar” employment? If I switch from patient care in a rural area to a fellowship, will that constitute “same or similar” employment?

The law requires that the new job be in the “same or similar occupational classification”. There are those who take the position that a “physician is a physician” on the liberal end of the spectrum and those who would apply a far narrower definition. An analysis must be undertaken to determine how the Department of Labor classifies the old and new jobs before making a decision.

If I was born in India or China where the employment-based immigrant visa quotas are sometimes backlogged, are there any provisions in the law to assist me?

There is a provision which provides that, notwithstanding the six year H-1B limit, if an H-1B visa holder is the beneficiary of an approved employment-based immigrant visa petition (I-140) and would be subject to the per country limit, the applicant may apply for extensions of H-1B status in three year increments until the applicant’s adjustment of status case is completed by USCIS.

When is one who enters the United States in H-1B status required to commence the H-1B employment?

No later than thirty days after the H-1B worker is admitted to the United States in H-1B status or no later than 60 days after the worker becomes eligible to work for the employer, if the worker is already in the United States. Note also that J-1 waiver physicians with a federal or state IGA waiver must agree to commence work within 90 days of the USCIS approval of the waiver and H-1B status.
This may result in conflicting required start dates, particularly when the J-1 waiver is granted but theH-1B petition filing or employment is delayed because of legal impediments to employment commencement, such as medical licensure or completion of graduate medical training.

Is it possible to change status from F-1 or J-1 status to H-1B status, after the H-1B cap is reached and the prior status (F or J) expires before the employment commencement date (usually October1)?

No. J-1 Physicians are not granted this grace period.

May an H-1B petition be filed prior to the filing or approval of an interested government agency J-1 waiver?

Yes, however, the H-1B petition cannot be filed more than six months prior to the projected employment commencement date. USCIS will not grant the cap exemption until the Department of State has recommended waiver approval to the USCIS.

NOTE:

A request for a change of status may not be requested on the H-1B petition if the J-1 waiver approval from DOS is not included. J-1 physicians should ensure that a change of status is not requested when the waiver has not been approved, as the result will be that the petition will be approved, but the change of status will be denied and the “unlawful presence” clock may begin ticking as of the date of denial of H-1B status.

Will I be unlawfully present in the United States if I remain beyond the termination of my exchange program plus thirty days to await the approval of a waiver or petition?

You will be out of status if you remain in the United States beyond the termination of your exchange program (J-1) or studies (F-1) plus any applicable grace period. The penalties for being out of status include being precluded in many instances from applying for adjustment of status to permanent residence in the United States with the exception of certain employment-based cases and immediate relatives of United States citizens.
You will not be unlawfully present in the United States if you were admitted to the United States for “duration of status” (D/S) on your last entry and neither an immigration officer nor an Immigration Judge has made a determination you are unlawfully present in the course of adjudicating an application. The penalties for being unlawfully present include the possibility of being barred from reentering the United States for three years, if you are unlawfully present for more than 180 days and less than one year, and for ten years if you are unlawfully present for one year or more. This penalty applies only if you depart from the United States.
Your visa will be voided on the first day of “unlawful presence” and you will be required to apply for future nonimmigrant visas in your home country unless you come within the blanket to exception to this rule which applies only to J-1 Physicians.

If I have H-1B status and take maternity leave, will I be deemed to be out of status or unlawfully present?

You will not be unlawfully present as long as your I-94 has not expired. However, in order to avoid issues of status, attempt to keep all possible ties with the employer, such as health insurance, retirement plans and seniority. Also, some interested government agency sponsors require the physician to make up for days absent on maternity leave at the end of the commitment period. The sparse guidance provided by USCIS suggests they would agree with this position. The same reasoning would apply to unpaid medical leave.

May I work as a volunteer at my H-1B job while awaiting approval of the petition?

The current thinking among immigration attorneys is that such is permitted provided the volunteers work is never compensated in any way. Unpaid observation and orientation should be permissible.

If I apply for an extension of H-1B status with the same employer for the same position, may I work after the prior petition expires and before the extension is approved?

If a timely application for an extension of a non-frivolous H-1B petition and status are filed, you may continue to work for the same employer until the petition extension is adjudicated.

In calculating the six year cap on continuous stay in H-1B status, is it necessary to include time spent in both H-1B and H-4 status in determining when the six year limit is reached?

No. H-1B status and H-4 status are counted separately.

May I switch to another status, such as E-1, E-2, F-1 or O-1, and remain in the United States for one year in that status and then return to H-1B status for an additional six years?

No. You must spend a total of one year physically outside the United States in the country of your choosing before being eligible for H-1B status if you reached the six year max-out. However, note that the one year outside the United States need not be continuous, but may be aggregated.

Is there a specified length of time which must be spent in H-4 status before filing for a change of status to H-1B?

No, unless doing such would conflict with prior statements made to an American consular officer or an USCIS officer and you are otherwise eligible.

Is it permissible to change from full-time to part-time employment in H-1B status?

Yes, provided that a new Labor Condition Application and H-1B petition are filed. Failure to file these documents could result in a finding by the Department of Labor that the employer was not paying the proper wage and other adverse findings. Of course, if the H-1B petition is for the J-1 waiver job, the physician must be employed full-time. Concurrent H-1B petitions may be filed for part-time work.

Is it possible that USCIS would revoke an H-1B petition if a former J-1 physician with an interested government agency waiver is working at job locations not listed in the J-1 waiver request or H-1B petition, even if the other job locations are HPSA areas?

Yes. Be meticulous in advising USCIS and the waiver agencies of any change in office location, even if it is a few feet away from the initially authorized location.

What recourse do I have if my employer refuses to pay me the LCA and H-1B wage?

Before taking any action, it is strongly recommended that an attorney in the community be consulted regarding possible remedies. Often, handling such matters on a local level facilitates resolution of the issues in an amicable fashion so that the physician and employer can continue working together.

Failing an amicable agreement, you may report the violations to USCIS and to the Department of Labor. However, once you embark on this course, you need to be prepared to be unemployed for a while. Although in violation of the law, your employer might terminate your employment for complaining, but claim the termination was for other reasons, such as incompetence, that may cause your professional reputation to be damaged. Such a violation may constitute “extenuating circumstances” to justify transfer to a new H-1B job.

If you change status from H-1B to H-4 to H-1B, will you be counted against the cap? Is there a time limit one can be in the H-4 status before being counted against the cap twice?

Anyone who has been counted against the cap in the past six years would not be counted again unless eligible for another full six years.

If a foreign national who was granted H-1B status three years ago has not been maintaining status for the past year, will a new H-1B petition be counted against the cap again?

Anyone who has been counted against the cap in the past six years would not be counted again unless eligible for another full six years. However, if the individual had spent one year outside the U.S., under USCIS regulations, s/he is eligible for another 6 years of H-1B status, and thus would be subject to the H-1B cap again.

Consular processing of immigrant visas at almost all consular posts has been faster than adjustment of status at most service centers. Which is more desirable?

Consular processing, if handled by competent counsel experienced in consular processing, may save years of waiting for USCIS to grant adjustment of status.
Current law and policy provides some advantages to people who file for adjustment of status over people who pursue consular processing.
The provision of the immigration laws permitting extensions of H-1B status beyond the sixth year for individuals with employment-based immigrant petitions approved but whose priority date is not current, appears to be available only in the context of adjustment of status.
Another advantage to adjustment of status over consular processing is that the permanent residence portability provision of the law specifies the filing of an adjustment of status application as a prerequisite for eligibility, and thus does not apply to persons in consular processing. Someone whose adjustment application has been unadjudicated for 180 days or more can change jobs and/or employers if the new job is in the same or a similar occupational classification as the one for which the petition was filed. On balance, if portability and/or visa number availability are not issues, consular processing should be pursued.

Is any provision made for continuity of H-1B status in corporate restructuring situations without filing a new H-1B petition?

Yes. The Visa Waiver Permanent Program Act included a provision that an amended H-1B petition is not required where a new corporate entity succeeds to the interests and obligations of the original employer, and where the terms and conditions of employment remain the same.
This area of the law is complex and advice from an immigration expert should always be sought in corporate restructuring situations.

If both spouses are in J-1 status, is it possible for one spouse to change status to J-2 in the United States?

No. However, a J-2 visa may be obtained at an American consular post abroad.

Will spouses and children of persons issued J-1 visas or in the United States in J-1 status automatically be issued J-2 visas by an American Consul?

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), consular officers often deny J-2 visas to dependents, believing the principal alien made material misrepresentations when s/he applied for a visa.

NOTE:

In March 2005, the Department of State issued a cable instruction to consular posts reminding them that J-2 visas should be issued to dependents if the J-1 has passed muster under 214(b) and the J-2 should also be deemed to pass muster under 214(b) except in extraordinary circumstances. However, many consular officers violate this policy, so proceed with caution. Always consult an attorney expert in J-1 physician and consular processing before applying for dependent J-2 visas.

May a person with J-2 status participate in a residency program with an USCIS issued work permit? Must a residency contract be filed with the work permit request?

With USCIS work authorization, the J-2 visa holder may participate in residency training or engage in any other employment. The USCIS 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 the J-1 is maintaining status. No employment contract must be filed with the request.

NOTE:

The law may be changed to permit completion of residency and fellowship training only in J-1 status or H-1B status with a service obligation.

Can a person with J-2 status pursue university studies? Can a J-2 change status to F-1 (student)?

A J-2 dependent of a J-1 physician in lawful 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 from 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.

May a J-2 dependent obtain a waiver if the J-1 principal dies or the marriage between the J-1 and J-2 is dissolved through divorce?

The Department of State Waiver Review Division will generally act as an interested government agency and grant a waiver to the J-2 spouse and children.

May a spouse or child in H-4 status engage in employment?

No. He or she must separately obtain a status which permits employment such as H-1B or O-1.

After being granted an interested government agency (IGA) J-1 waiver by USCIS, is it possible to go directly to immigrant status through a national interest petition without, for example, working in H-1B status first?

If a waiver is obtained through an interested federal government or state agency (other than an HHS research waiver), and USCIS approved the waiver after September 30, 1996, the physician must work in H-1B status for three full and complete years before applying for permanent residence. An immigrant visa petition may be approved at any time during the three year period; however the application for permanent residence cannot be filed until three years of service in H-1B status are completed.
J-1 physicians with interested government agency waivers, who jump the gun and file an I-485 before completing three years of work in H-1B status (other than NIW beneficiaries), face disastrous consequences, if detected. Persons whose interested government agency clinical waivers were approved by USCIS after September 30, 1996, must work three years in H-1B status before filing an I-485, “Application for Status as Permanent Resident”, unless based on an NIW petition.
Sadly, a number of physicians, often upon the erroneous advice of counsel, jump the gun and file the I-485 with USCIS prior to the completion of the three year H-1B commitment, only to have the permanent residence application denied some years later for failure to complete three years in H-1B status prior to filing the I-485. Those who have jumped the gun have had the two year home residence requirement reinstated and the application for permanent residence denied.

When does the three-year time commitment begin?

You may begin counting the three-year commitment only when you commence employment in H-1B status. No other time period counts.

Is it permissible to file an H-1B petition at the same time a national interest employment-based second preference immigrant visa petition (NIW) is filed?

Yes.

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 petition as well. A grant of political asylum waives the two year foreign residence requirement.

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 waiver must still be obtained. If the waiver is an IGA Clinical waiver, the J-1 physician must complete three years of service in H-1B status before applying for permanent residence. 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 before the former J-1 completes three years of service in H-1B Status.

Is it possible to obtain the approval of an O-1 petition while awaiting an interested government agency waiver? If the O-1 petition is denied, is it possible to extend the DS-2019 for a fellowship?

It is possible to obtain the approval of an O-1 petition while awaiting the approval of a 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 an American consular post 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. It is possible to obtain a new DS-2019 and extend J-1 status where an O-1 petition is denied, provided you are otherwise eligible