Physicians (FMG/IMG)-US Immigrant and Non-Immigrant Visas and J-1 Visa Waivers
The law offers Foreign Medical Graduates (FMGs/IMGs) several avenues to obtain US visas and to become permanent residents. FMGs who are in training with J-1 Visas and that have the 2-year foreign residency requirement, must obtain a waiver of that condition prior to seeking an H-1B Visa or Permanent Residency. Some physicians may qualify for the O-1 visa, which does not require that a J-1 visa waiver be obtained first.
Waivers: A waiver of the J-1 2-year foreign residency requirement generally requires a commitment to work full-time in a Medically Underserved Area for at least three years. A request for a waiver of the 2-year foreign residency must be made through an interested government agency. The following agencies presently have established J-1 visa waiver programs: the U.S. Department of Health and Human Services, the Delta Regional Authority, the U.S. Department of Veteran's Affairs, and the Appalachian Regional Commission. In addition, each state is permitted to grant up to thirty waivers annually to physicians who work or serve patients in its Underserved Areas under the Conrad-30 program. Some states also have J-1 Waiver programs for sub-specialists. Each state has an Agency or Contact that administers the program. Please note that each agency has different guidelines and application periods for J-1 visa waivers.
DS-3035: In addition to the application for a J-1 Visa Waiver, an applicant must also obtain a case number from the U.S. Department of State. The application must be submitted by filing Form DS-3035 along with supporting documentation and fee to the Department of State. This DOS number must be issued and provided to the governmental agency processing the J-1 Visa Waiver application before the waiver application is approved. Physicians may also apply for the Hardship Waiver.
Foreign medical graduates who qualify may apply for the H-1B Visa. Physicians that obtain a J-1 Visa Waiver based on employment in an underserved area are not subject to the caps on H-1B numbers.
Permanent Residency: Physicians, who seek Permanent Residency, may apply for Labor Certification, or pursue a National Interest Waiver Petition. Physicians who choose to file for Labor Certification may only apply for Permanent Residency after the Labor Certification petition is approved. As such, they may only file for their dependents at that time. National Interest Waiver applicants may submit green card petitions, along with requests for work authorizations for their dependents at the time of filing the petition. However, the Permanent Residency application is approved only after the physician demonstrates that he has completed five years of service in an Underserved Area.
With Labor Certification, the physician’s employer must show significant evidence that it unsuccessfully sought to hire U.S. workers for the position, despite a sustained recruitment campaign. This is not required of National Interest Waiver Applicants. While FMGs who obtained a J-1 Waiver with a 2-year foreign residency requirement may apply for Labor Certification, they may only apply for a Green Card after 3 years of service in an Underserved Area. In contrast, National Interest Waiver applicants may submit an application for Permanent Residency for themselves and dependents before completing the J-1 Visa Waiver 3-year service in an Underserved Area.
Physicians who are unable to complete their 3-year J-1 Visa Waiver/ 5-year National Interest Waiver obligation, or have to change employers prior, need to consult an immigration attorney to determine how best to proceed.
J-1 Waiver Transfer - Extenuating Circumstances Checklist
For physicians completing the 3-year waiver service to transfer to another location to complete the service, he/she needs to demonstrate that extenuating circumstances justify the transfer.
[Review the Extenuating Circumstances Checklist]
Court Cases: Schneider v. Chertoff decision is implemented nationwide. Click here to read the USCIS memorandum regarding interim adjudication procedures for National Interest Waiver Petitions.
Click here to read about the court striking down the physician national interest waiver regulations.
J-1 Visa Waiver Transfers
In applying for a J-1 visa waiver transfer with the USCIS for a job change, termination or relocation, the physician is required to provide a reason for the transfer. The following lists the issues that are evaluated in submitting a transfer application. [more..]