Rochelle Dramesi, Senior Attorney
International Medical Graduates (IMG) who are subject to the J-1 home residency requirement, and their employers, will find that the demand for J-1 waivers has consistently exceeded supply. Meaning that many states use their Conrad 30 J-1 Waiver Program slots by the beginning of the calendar year. Some within days of the fiscal year opening. While federal agencies can grant an unlimited number of Interested Government Agency (IGA) waivers year-round, they have restrictions on geographical territory and practice areas. Coupled with the high demand for H-1B specialty occupation visas for cap-subject employers, physicians and their employers are left looking for alternatives to practice in the U.S.
To be eligible for immigrant (permanent) visa categories, a physician must eventually obtain a waiver.* In the meantime, until a physician can obtain one, there are alternatives to the J-1 waiver and H-1B visa that allow a physician to remain in the U.S. without needing to depart and satisfy the two-year home residency requirement.
The O-1 Visa: This visa is for individuals that have extraordinary ability. This category normally applies to physicians that have above normal achievements usually expected of the profession. However, physicians at the beginning of their career can get this visa with a strong resume, breakthrough research, established publications, or otherwise setting themselves apart from peers. Employer sponsorship is required, and the initial visa can be granted for three years, with extensions in 1-year increments.
Canadian Citizens in H-1B status: Canadian citizens are visa-exempt, and since a J-1 waiver is required before issuance of a visa, Canadian citizens are allowed to present themselves at the U.S. border and enter in H-1B status.
TN Visa: This is an option for Canada and Mexico nationals who will be engaged in teaching or research. TNs are not as useful for physicians and positions that require patient care. A TN may also not be a viable long-term option as immigrant intent issues arise, which require a J-1 waiver to be eligible for dual-intent/immigrant visa categories.
Physician National Interest Waiver: This is available to physicians that agree to work at least five years in a shortage area and do not require employer sponsorship. Physicians can quickly receive employment authorization if they are born in countries that are allowed to file the green card application at the same time as the I-140 petition. However, physicians must receive a sponsorship letter from the state or federal agency where the employment is based. Each state and federal agency has their own policy to support these waivers. For instance, some states do not support these waivers unless the physician has first obtained a J-1 Conrad 30 waiver in that state.
Non-Physician National Interest Waiver: This is an option for physicians who can demonstrate that their work or research area is in the U.S. national interest, separate from practicing in a shortage area. Physicians having established research backgrounds or strong qualifications would be good candidates for this category given the scrutiny and high standard applied.
EB-1-1/A Visa: Physicians must be able to demonstrate extraordinary ability in their field of expertise. The immigrant visa type is usually an extension of the O-1 nonimmigrant visa, but like the non-physician national interest waiver, is also more closely adjudicated, and held to a higher standard. Physicians don’t need an employer sponsor and may file their green card application at the same time.
E-2 Visa: While more uncommon, this visa type is available to treaty country nationals opening their own practice in the U.S. Physicians must invest a “substantial amount” of capital and “develop and direct” the investment enterprise.
Asylum: This allows an individual to request protection from the U.S. government because of past persecution or a fear of future persecution on account of political opinion, religion, race, nationality, or membership in a particular social group.
Temporary Protected Status (TPS): This temporary status is available to citizens of the countries currently designated by the Department of Homeland Security. This does not lead to permanent (green card) residence.
Deferred Action: This is a discretionary measure whereby the Department of Homeland Security allows a person to remain in the U.S. A work permit is available to people granted deferred action, but not a guarantee. This does not lead to permanent (green card) residence.
Despite best efforts to secure “waiver jobs” as early as possible or carefully negotiating the employment contract, IMGs requiring a J-1 waiver, and their employers, have a challenging path to navigate. Consider working with an experienced immigration practice, like Maggio Kattar, that can guide you through and advise on how to best exhaust your options.