By ALEXANDRA CRANDALL
J-1 status is a favorite for foreign nationals attending medical resident training programs in the United States. While there are many advantages to the J-1 visa category, one major obstacle remains for J-1 physicians who wish to continue working in the United States—the home residence requirement.
Because the J-1 physician visa is considered an “exchange visitor visa,” foreign nationals who enter in that status must return to their home country for two years before being granted H/L non-immigrant status or permanent residency. This is a discouraging reality, particularly within an industry that desperately needs to retain the talent it works so hard to train. Luckily, there are four options to waive the home residency requirement, though each requires careful timing and expertise.
Option One: Conrad 30 Waivers
Conrad 30 waivers are available to a limited number of physicians each year based on the J-1 physician’s commitment to work in underserved communities. While there are a few federally-mandated requirements for this waiver, each state runs its own program and dictates eligibility of applicants. Each physician must, at a minimum: (1) agree to work full-time for three years in a qualifying location; (2) begin work within 90 days of the waiver being granted; and (3) work in an underserved area or serve patients residing in an underserved area. Other requirements may apply depending on the state where the physician would like to work.
In Michigan, among other requirements, the J-1 physician’s proposed employer typically must be located in a Health Professional Shortage Areas (HPSAs), accept Medicaid/Medicare, and utilize a discounted or sliding fee schedule for low-income clients. Waivers are ultimately awarded according to priorities set by the Michigan Department of Health and Human Services (MDHHS). MDHHS’s current priorities are for “safety-net providers” (county health departments, community mental health centers, free clinics, etc.), full-time primary care physicians who are not eligible for certain federal government waivers, and placements within HPSAs that have the greatest unmet need for primary care physicians. Only 30 waivers are available to J-1 physicians in Michigan each year, and MDHHS gives first priority to applicants who meet this criteria. If there are any slots available afterward, then MDHHS will recommend applications based on those that most closely align with MDHHS’s priorities.
Option Two: Interested Federal Government Agency Waivers
Interested federal government agencies are permitted to sponsor a waiver benefitting a J-1 physician so long as the waiver would benefit the public interest, and that person would be involved with a program of interest to the agency. Currently, the federal government agencies with J-1 waiver programs are the Appalachian Regional Commission (ARC), the Delta Regional Authority (DRA), the Department of Veterans Affairs (VA), Southeast Crescent Regional Commission (SCRC), and the Department of Health and Human Services (HHS).
Each of these agencies has different requirements, but can provide a much-needed outlet to J-1 physicians who could not obtain a Conrad 30 waiver. For example, a waiver offered by HHS focuses on physicians committing to employment within HPSAs, but does not (like some Conrad 30 programs) disfavor applications where the employment contract includes a non-compete clause. Further, while some waivers may not accommodate or prioritize specialist physicians, the DRA waiver (and others) will accommodate specialist physicians so long as the application proves a need for that specialty in the proposed area of employment.
Option Three: Hardship Waiver
Unlike the above options, a hardship waiver is not based on the proposed employment for the J-1 physician in the United States. Instead, it is based on hardship to a qualifying relative (U.S. citizen/permanent resident spouse or child) due to the J-1 physician’s return to their home country for a period of two years.
“Hardship,” with this waiver, cannot be the typical consequences of a temporary relocation or separation. Rather, it must be “exceptional and extremely unusual.” There is no definitive list of factors, but applicants can explain any extreme economic, family, medical, cultural, social, safety, or other relevant hardship. Typically, a successful hardship waiver application will detail extreme hardship in multiple categories and show that the extreme hardship will exist whether the entire family travels abroad or is separated for two years. Among other factors, USCIS considers it “particularly significant” when the waiver application shows asylum/refugee status, disability, or military service of the qualifying relative.
Option Four: Persecution Waiver
Like option three, the persecution waiver is considered regardless of the planned employment of the J-1 physician. To receive the waiver, the J-1 physician must be subject to persecution based on race, religion, or political opinion in their home country. Anyone familiar with U.S. asylum law will notice that the J-1 persecution waiver requirement is much narrower than asylum qualifications. For that reason, qualifying J-1 physicians may consider applying both for asylum and a waiver.
J-1 physicians and their employers who wish to retain talent in the U.S. have several waiver options available to them, and may even be able to employ other strategies (such as an O-1 extraordinary ability visa) to prolong their presence in the U.S. Regardless, because each waiver requires planning and intensive documentary support, it is critical counsel with an attorney to make sure employers and physicians put their best foot forward.