J-1 exchange visitors, often Foreign Medical Graduates (FMGs), who receive graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act (INA). This requirement means that, upon completion of medical training, the J-1 physician must return to their country of nationality (or country of last permanent residence) for a period of at least two years in the aggregate before becoming eligible for certain nonimmigrant work visas, such as H-1B, or legal permanent residence.
The INA provides multiple paths of waiving the two-year foreign residence requirement noted above, including if (1) the J-1 physician believes they will be subject to persecution upon returning home, (2) the J-1 physician’s compliance with the requirement would cause exceptional hardship to his/her U.S. citizen or lawful permanent resident (LPR) spouse or child, (3) a U.S. federal government agency has determined that the J-1 physician departure from the U.S. for two years would be detrimental to its interest, or (4) if a designated State Public Health Department or its equivalent has determined that the J-1 physician’s clinical service in its jurisdiction is in the public interest. There are several different U.S. federal government agencies that have clinical service waiver programs. This blog focuses on the Department of Health and Human Services (HHS) Clinical Service Waiver and is complementary to our earlier blog post regarding the State/Conrad 30 clinical service waiver.
HHS Program: Clinical Service Waiver
The HHS clinical waiver program allows eligible J-1 physicians to apply for a waiver of the two-year foreign residence requirement with certain commitments. A key commitment is that the J-1 physician will provide full-time primary care clinical services in an underserved area for not less than three years. Primary care services include family medicine, general internal medicine, general pediatrics, obstetrics and gynecology, and general psychiatry. The Health Professional Shortage Area (HPSA) score of the relevant locality must be 07 or higher. Two other notable requirements are that the application must include three letters of community support and that the physician must commence employment pursuant to the waiver no more than 12 months after the completion of an eligible residency.
Onboarding a J-1 waiver candidate is a two-step process with three applications. First, the prospective employer and candidate jointly file a waiver support application with HHS while the candidate also files a waiver application U.S. Department of State (DOS). Upon recommendation by HHS, recommendation by the DOS, and waiver approval by the U.S. Citizenship & Immigration Services (USCIS), the employer files an H-1B non-immigrant petition with the USCIS. The H-1B petition must be approved in order for the physician to be authorized to work for the petitioning employer pursuant to this program.
Although time frames are subject to change, waiver adjudication by the three agencies takes a minimum of five months after the waiver request/application is filed. Preparing the filing can take months and ought to be carefully planned in advance. Given the multiple steps and agencies involved, as well as the particular requirements of the HHS clinical service program, many clinicians actively seek a waiver-eligible position one year prior to the desired start date. For example, if the wavier candidate is expected to start work on, e.g., July 1, the waiver application should be initiated in August or September of the prior year (although some steps, such as recruitment, will already be underway).
Final Thoughts
Since the waiver process is time consuming and expensive, as well as vital to long-term staffing plans, we recommend that employers contact an experienced immigration professional as soon as a candidate is under consideration. It is prudent to consider the range of immigration issues that can come up in this employment relationship and to address them in the contract. The parties should also consider their expectations concerning the physician’s long-term employment once the waiver is completed.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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