The majority of international medical graduates who come to the United States for residency or fellowship training do so on a J-1 visa. A J-1 visa is issued for the duration of the physician’s training in the U.S., for a maximum of 7 years. A J-1 visa allows the physician to work only for the hospital or related entity where he or she is serving as a resident or fellow. At the conclusion of residency or specialty training, the J-1 physician is required to return to his or her home country for two years before the physician can return to the U.S. This obligation is often referred to as the J-1 foreign residence requirement.
Under certain, limited circumstances, a physician who is here in the U.S. on a J-1 visa can obtain a waiver of the J-1 foreign residence requirement to enable him or her to stay in the U.S. after completing residency training. Currently, one of the available routes for a waiver is to obtain the support of a state department of health or federal government agency by agreeing to provide health care at a Veterans Administration Hospital or to patients in a Health Professional Shortage Area or Medically Underserved Area in the United States.
The federal government agencies that have J-1 waiver programs for physicians who will engage in patient care are the Department of Veteran Affairs, the Department of Health and Human Services, the Delta Regional Authority and the Appalachian Regional Commission. In addition to the federal agencies, each state Department of Public Health is also authorized to sponsor 30 J-1 waivers per fiscal year. Each of these agencies has its own J-1 waiver requirements. However, all agencies require at a minimum that the physician have a three-year employment contract to provide full-time medical care to patients from Health Professional Shortage Areas or Medically Underserved Areas.
The waiver request to the government agency is submitted by the employer on behalf of the physician. The physician cannot file on his or her own behalf. Processing time varies considerably, depending on the government agency involved. If the government agency agrees to recommend a waiver, it will forward its recommendation to the Department of State’s J-1 Waiver Review Office.
The Department of State will then send its recommendation to the U.S. Citizenship and Immigration Services (USCIS). The USCIS has the final authority to grant the waiver of the J-1 foreign residence requirement. In almost all cases, United States Citizenship and Immigration Service will follow the recommendation of the Department of State.
A waiver of the J-1 home residence requirement does not allow the physician to work in the United States. In order to obtain work authorization, the physician’s employer must file an H-1B visa petition to obtain H-1B visa status for the physician.
The H-1B visa is designed for employers who wish to employ temporarily foreign nationals in “specialty occupations.” H-lB visas are available for physicians who come to the United States to perform direct patient care, provided that the physician possesses a valid medical license from the state of intended employment and has successfully completed all parts of the Federation Licensing Examination (FLEX) or the United States Medical Licensing Examination (USMLE). The H-1B visa is issued for an initial three-year period with a maximum stay of six years. The H-1B visa limits the physician to working only for the H-1B petitioner employer.
The H-1B visa category is the only visa category available for a physician who has obtained a J-1 waiver through employment in a medically underserved area. Physicians must work for three years in H-1B visa status to comply with the terms of the J-1 waiver. Failure to complete three years of employment in H-1B status will result in the physician once again becoming subject to the two-year foreign residence requirement.
Because there are several government agencies involved in the J-1 waiver and H-1B visa process, it is important to plan ahead and begin the process at least six months before the date the physician intends to begin employment.
I. Obtaining a Waiver of the J-1 Foreign Residence Requirement
- Prospective employer submits a J-1 waiver application to a state health department or participating federal government agency.
- The agency reviews the waiver request to determine if it meets the waiver program requirements. Processing time at this stage can take up to six months, depending on the agency involved. If the request is approved, the agency forwards its favorable recommendation to the U.S. Department of State.
- The Department of State (“DOS”) reviews the waiver request. The average processing time is currently 1 to 2 months.
- The DOS sends its favorable recommendation to the U.S. Citizenship and Immigration Services (“USCIS”), which issues the final decision on the waiver request.
II. Obtaining the H-1B Visa for the Physician
- Physician must 1) have a medical license for the state where he or she will work; 2) be certified by the Educational Commission on Foreign Medical Graduates; 3) have passed Parts I and II of the Federation Licensing Examination or Parts I, II, and III of the United States Medical Licensing Examination. If a change of status is requested, the physician must have a favorable J-1 waiver recommendation from the Department of State.
- Employer files a Labor Condition Application with Department of Labor, demonstrating that it has complied with Department of Labor salary, record keeping and notice requirements.
- Employer files an H-1B visa petition to the U.S. Citizenship and Immigration Services. At the same time, physician’s spouse may file an application to change his or her visa status and the status of any children from J-2 to H-4, if otherwise eligible. Processing times currently average 60 to 90 days, but are subject to change based on USCIS workload. For an additional fee of $1,000, the USCIS offers a premium process service whereby the petition is reviewed in 15 calendar days.