Judge Says Canadian Physicians Are Eligible for H-1B Admission Regardless of the J-1 Two-Year Foreign Residency Requirement

Ulmer & Berne LLP

A federal judge in New York has ruled that Canadian physicians who are subject to the J-1 two-year foreign residency requirement may enter the United States in H-1B status, even though they have not spent two years in Canada or received a waiver of the requirement that they do so. The case is Atanackovic v. Duke et al., No. 6:17-cv-06689 in the U.S. District Court for the Western District of New York.

The ruling is important because it confirms what many immigration practitioners already knew – since Canadians may enter the United States without visa stamps in their passports, Canadian physicians who are subject to the two-year foreign residency requirement may seek admission to the United States in H-1B classification with a USCIS I-797 H-1B approval notice. That is because, unlike most other foreign physicians, they do not require an H-1B visa stamp in their passports.

Dr. Atanackovic came to the United States in 2013 in J-1 status to receive medical training. Once he was finished with his training, a hospital sponsored him for H-1B status to work as a physician. The petition was approved by U.S. Citizenship and Immigration Services. When Dr. Atanackovic tried to enter the United States at a Customs and Border Protection (CBP) inspection station near Buffalo, New York, U.S. CBP officers refused his admission because he “did not have the necessary waiver … to be allowed to work” at the hospital, having not fulfilled the two-year foreign residency requirement.

Finding that CBP had abused its discretion when it refused to admit the physician in H-1B status, the judge found that the immigration officers’ refusal to admit the Canadian physician was “arbitrary and capricious, and not in accordance with law.”

A final, important takeaway: Canadian physicians who are subject to the two-year foreign residency requirement and who enter the United States in H-1B status remain subject to the J-1 foreign residency requirement and will eventually need to complete two years in Canada or obtain a waiver if they wish to obtain lawful permanent residence (green card status) in the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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