Foreign medical graduates have the option of entering the United States with an H-1B visa in order to provide care, as part of a medical training program, or to teach or conduct research for a sponsoring employer. These visas are usually limited based on however many visas are available for a specific fiscal year unless the employer itself is exempt from the H-1B cap. However, physicians can bypass the H-1B cap if they receive a J-1 Visa and are then eligible for the two-year home residency requirement waiver.
J-1 Two-Year Home Residency Requirement
The J-1 visa is an alternative method for doctors to enter the United States. It is a less complicated process (it does not require a submission of Labor Condition Applications like with an H-1B visa). However, those who enter under a J-1 visa are subject to the two-year home residency requirement under section 212(e) of the Immigration and Nationality Act. Section 212(e) requires individuals to return to their home country for a total of two years before they are eligible to change to a different non-immigrant status or to apply for a green card to be a permanent resident of the U.S.
However, Foreign Medical Graduates may be eligible for waiver of the J-1 Two-Year Home Residency Requirement under a number of potential waivers:
- Conrad-30 Waiver
The Conrad 30 Waiver Program allows J-1 foreign medical graduates to waive the two-year home residency requirement once they complete their J-1 exchange visitor program.
An applicant for the waiver must meet these minimum requirements:
- They must have been admitted to the U.S. under a J-1 Visa.
- They must have entered into a full-time employment contract to practice medicine in H-1B nonimmigrant status for a minimum of 3 years in an area designated as a Health Profession Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP). If their job site is not in those areas, their patients, at least, must be.
- They must get a “no objection” statement from their home country indicating that they are able to return at the end of the exchange program. This must be done at the embassy for the applicant’s home country located in Washington D.C.
- They must agree to begin their job within 90 days of receiving the waiver.
To apply, an interested individual must complete the online application as described on the Department of State website. This includes filling out the application, mailing it and other supporting documents to the applicable Department of State office, and then wait for a final recommendation to USCIS regarding your application. If the recommendation is positive and USCIS grants the waiver, the applicant should submit the following documents to USCIS:
- Form I-129, Petition for Nonimmigrant Worker
- The favorable recommendation letter from the Department of State.
- A Form I-539, Application to Extend/Change Nonimmigrant Status for any applicable spouse and/or child(ren).
Once those documents are submitted and the applicant has fulfilled their minimum three years in a designated area, the applicant can now apply separately for an immigrant visa, adjustment of status, an H visa, or an L nonimmigrant visa – all without having to leave the country.
- Interested Government Agency Waiver
An applicant can also have the home residency requirement waived If a U.S. federal government agency requests that the requirement be waived. This applies for physicians who are working on a project for or of interest to a U.S. government agency. If the head of the agency believes that the applicant’s departure would be harmful to the government’s interest, it can sign the “Interested Government Agency Request” and submit it to the Waiver Review Division.
This form of waiver is purely in the hands of a government official and waiver process must be handled entirely by the agency.
- Exceptional Hardship Waiver
This waiver applies if the applicant’s spouse or child(ren) are U.S. citizens or Lawful Permanent Residents. If that is the case, and the applicant can show that their departure from the United States would cause exceptional hardship to the family, then they may receive a waiver of the two-year home residency requirement. An applicant must submit Form I-612, Application for Waiver of the Foreign Residence Requirement along with any supporting evidence of exceptional hardship and the $930 application fee. Note that mere separation of family does not qualify as exceptional hardship. USCIS is looking for hardship more along the lines of:
- The applicant is the primary caretaker of a seriously ill or infirm parent and their departure will leave that individual without a caretaker.
- Applicant’s spouse is ill and cannot receive adequate medical treatment in their home country.
- If applicant’s family will not/cannot return with them, applicant can show that the added expense of maintaining two households would cause exceptional financial hardship.
Note that the examples above are just that – examples. They are not the only types of exceptional hardships that USCIS will recognize.
If USCIS finds that you meet the requirements for the exceptional hardship waiver, it will inform the Department of State’s Waiver Review Division, which will then process the waiver and you and your family will not be subject to the two-year home residency requirement.
- Persecution Waiver
If the applicant believes that they and their family will suffer persecution based on their race, religion, or political opinion if they return to their home country, they can apply for a persecution waiver. The applicant must submit Form I-612, Application for Waiver of the Foreign Residence Requirement along with supporting evidence for your fear of persecution and the $930 filing fee. If USCIS decides in your favor, it will inform the Department of State’s Waiver Review Division, which will then process the waiver and you and your family will not be subject to the two-year home residency requirement.
Conclusion
There are a number of ways an applicant can bypass the waiver and they are all specific to whatever circumstance they might be facing. If you find yourself in a situation where you are considering applying for a waiver, we recommend talking with an experienced immigration attorney to ensure that you pursue the path that is best for your situation.
If you need further guidance or have specific questions about your individual situation, you can schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.