SPECIAL VISA CONCERNS FOR PHYSICIANS AND BIOMEDICAL RESEARCHERS

The J-1 Exchange Visitor Program / ECFMG

Most foreign medical graduates go through the J-1 exchange visitor program, which is administered by the Educational Commission on Foreign Medical Graduates (ECFMG). The J-1 program allows graduates of foreign medical schools to come to the United States to engage in fellowship and residency training, and to accept compensation for services during training. The J-1 program is generally the most flexible and cost effective for residency and fellowship programs, though some programs will use H-1B visas in lieu of J-1s.

The major drawback of the J-1 program is that it requires foreign medical graduates to return to their home country for two years. This “home residency requirement” is part of the U.S. government’s agreement with other countries to allow for international exchanges of training and expertise, while preventing the “brain drain” of high-level professionals abandoning their home countries for more lucrative opportunities.

The J-1 program also allows for waivers of the “home residency requirement” provided that a physician or researcher commit to working in an underserved area, or demonstrates that their remaining in the United States has a particular national interest. The goal of these programs is to essentially funnel medical professionals into areas of greatest need. Obtaining J-1 waivers can be an onerous process. Streff Legal has extensive experience preparing and filing J-1 waiver applications on behalf of medical employers.

Conrad 30 State Waivers

One of the most common J-1 waivers is the Conrad State 30 Program. The Conrad waiver program was established in 1994 by North Dakota Senator Kent Conrad. It allows physicians to obtain a waiver of the two-year home residency requirement if the physician commits to 3 years of service to medically underserved populations. To utilize this program, an employer must either be in a designated medically underserved area, or must show that it serves residents from underserved areas. It is generally for primary care physicians, but also allows for specialists. Each state is currently allowed 30 waivers per year.

Each state has different requirements and time-frames for the Conrad program. The federal quota opens on October 1 of each year, and most states begin accepting applications around this time. Some states have very specific deadlines, while others take rolling applications. Timing is critical in connecting a physician to an employer for Conrad sponsorship, and physicians looking for a Conrad sponsor should do so well in advance of their final year of residency or fellowship. Additionally, the documentary requirements for Conrad waivers are extensive. Streff Legal recommends that physicians have selected an employer willing to begin work on the Conrad waiver in late spring to early summer for employment intended to begin work late in the year, or, increasingly more often, in the following year.

HHS Clinical Waivers

The U.S. Department of Health and Human Services (HHS) also offers two J-1 waiver programs. Primary care physicians seeking employment with employers located in an area with a high “Health Professional Shortage Area” (HPSA) score may utilize the HHS clinical waiver program. It is relatively simpler and more straightforward than a Conrad waiver, and does not have the limited capacity or timing issues associated with the Conrad waiver. Primary care physicians eligible for this waiver include those completing their residencies in family medicine, internal medicine, general pediatrics, OB/GYN, and general psychiatry. Physicians must be directly coming out of their primary care residency, and cannot have pursued specialty fellowships.

HHS Research Waivers

In addition to the clinical waiver, the U.S. Department of Health and Human Services offers a waiver for researchers doing work in the national interest. This can range from lab-oriented to more clinical or epidemiological studies, though obtaining waivers for clinical studies is typically more challenging. Researchers must demonstrate that the research program is pursuing novel and impactful studies, and that the researcher has substantial qualifications making them uniquely suited to perform the research. Research programs with National Institutes of Health (NIH) or other government funding are strongly preferred. Obtaining an HHS research waiver requires extensive documentation and explanation of the research, as well as a comprehensive demonstration of the researcher’s credentials. Streff Legal staff has been highly successful in securing these very hard-to-obtain research waivers.

EB-1 / O-1 and National Interest Waivers

Physicians and researchers with unique skill sets or pursuing novel endeavors may also qualify for preference in the immigration system based on their “extraordinary” or “exceptional” ability, or the national interest of their work. Physicians or researchers can obviate immigration waiting periods that can be many years long, particularly for immigrants from high-level immigration countries such as India or China. Foreign nationals of “extraordinary” ability may obtain an exception from H-1B requirements through a non-immigrant temporary O-1 visa. Foreign nationals seeking Permanent Residence (Green Cards) can obtain employment based (EB) first preference in the EB-1-1 “extraordinary ability” category or the EB-1-2 category for exceptional researcher or professor. Foreign nationals eligible for these categories are typically doing novel research or making other unique contributions in a scientific field or making breakthrough advances in the provision of medical services.

The “National Interest Waiver,” is a somewhat more accessible path to Permanent Residence in the employment based second-preference category (EB-2). It is available for a wide range of professionals, and could be used, for example, for hospital administrators who are implementing unique, cost-saving, or other types of progressive healthcare initiatives.