J-1 Medical Doctor Waiver Approvals
Posted Oct 26, 2001

Waivers from the two-year home residency requirement (HRR), particularly for medical doctors on J-1 Visas are challenging and often are considered a specialized area within the field of immigration law. Following are two examples of J-1 waiver approvals of The Law Office of Sheela Murthy by federal "interested government agencies" and the State Conrad 20 Program for our clients, which illustrate two separate routes such J-1 Visa holders may use to receive the waiver, depending upon their fields and interests.

Many J-1 scholars are subject to a requirement under section 212(e) of the Immigration and Nationality Act. That is that they return to their last country of residence for two years before they can be eligible for the H1B or for permanent residence / green card.

In general, the factors that could make one subject to this requirement are: (a) receiving government funding, from either the U.S. or the home country government; (b) being in a field of expertise that is listed on the "skills list" as vitally needed in one's home country; or (c) being in a graduate medical training (such as a medical residency) program.

Often it is unclear whether one is subject to 212(e). The notation on one's J-1 visa stamp is not always accurate, as may also be the case with the information on one’s Form IAP-66. In some instances it could prove worthwhile to request an opinion on the issue from the U.S. Department of State (DOS). Many of those who are subject to the 2-year HRR file for the waiver on their own, except for medical doctors who generally utilize the services of law firms for the waiver.

If one is subject to 212(e) and wishes to obtain either the H-1 or the green card, the person could either comply with the requirement by living outside the U.S. in the country of last residence for 2 years or s/he could seek a waiver of the 2-year HRR.

The waiver options available may depend upon a variety of factors. The simplest type of waiver is based upon a letter of "no objection" from one's home country government. However, physicians involved in patient care are not eligible for this type of waiver. The more complex types of waivers are based upon: (i) a recommendation by an "interested government agency;" (ii) the special state programs for physicians; (iii) hardship; or (iv) persecution.

In this article we provide two examples of waivers for medical doctors at The Law Office of Sheela Murthy, since those are considered the most complex. In the first, the U.S. Department of Health and Human Services agreed to act as the interested government agency to successfully advocate for the waiver on behalf of our client. The second was successfully processed through a state "Conrad 20" program for physicians.

U.S. Department of Health and Human Services  The U.S. Department of Health and Human Services (DHHS) has established an Exchange Visitor Waiver Review Board to consider J-1 Waiver requests. It is quite difficult to receive a waiver from DHHS, as they have become restrictive over the past few years and have stringent criteria that must be met.

We received an approval for a medical doctor / researcher engaged in gastroenterology. The medical doctor was engaged in direct research about 75% of the time, with the remainder of his time spent in related patient care and consultation services. A foremost expert in the fields of Gastroenterology and Internal Medicine, he had undertaken groundbreaking research in the areas of the pathogenesis of gastrointestinal diseases caused by food - and water-borne, infectious bacteria and the pathogenesis of inflammatory bowel diseases, Crohn’s disease, and ulcerative colitis. His work was supported by several grants. He had a patent pending for his innovative work. He had also received numerous awards.

The Law Office of Sheela Murthy presented evidence that the researcher satisfied the DHHS' criteria for being awarded a waiver. We proved that our client was in a high-priority program of national or international significance, involving the broad interests of the DHHS. We showed that the scientist was playing a leading and essential role in one of the leading programs in the U.S. in a field of critical importance.

The DHHS will not approve a waiver request merely to overcome a local personnel shortage or because the exchange visitor has training or skills that are in short supply in the U.S. Nor will it recommend waivers requested by private institutions claiming their programs of training, research, and medical treatment would be greatly enhanced if they could indefinitely retain certain exchange visitors.

DHHS also requires that a direct relationship exist between the exchange visitor and the program involved - such that the loss of his or her services would necessitate discontinuance of the program. The exchange visitor must possess unique and outstanding qualifications, training, and experience and must be making original and significant contributions to the program. There must be documentation of efforts by the sponsoring program of its inability to find a suitable replacement and an explanation of the sponsoring program's long-range plans for the exchange visitor. There must also be an in-depth and scientifically detailed description of the work conducted at the program. Reference letters from leading experts in the field must also be included, describing the research in scientific terms. Unlike at INS, DHHS has the reference letters and other documents for J-1 waivers reviewed by scientists and experts with specialized skills and knowledge of the particular fields.

The Law Office of Sheela Murthy successfully proved to the satisfaction of DHHS that our client, for whom we had also received I-140 approvals in both the National Interest Waiver and Extraordinary Ability categories, was indispensable to the program and a leader in his field. He was granted a waiver from the two-year HRR. DHHS approved the waiver request and forwarded it to the DOS. DOS agreed with the findings of DHHS and also approved the request, forwarding it to INS for the final decision. INS generally confirms the findings of the DOS. As evident here, the DHHS criteria are high in a case requesting waiver of the HRR.

State Conrad 20  The Law Office of Sheela Murthy has received several recent approvals under State Conrad 20 programs for medical doctors requesting waiver of the two-year HRR. Since 1994, state health departments have been authorized by Congress to act as interested government agencies for the purpose of recommending the two-year HRR for J-1 Visa doctors be waived. Each state can recommend up to 20 waivers to the DOS per fiscal year. Some states review waivers on a rolling basis. Others select a certain date each year for applicants to submit their requests.

All but 14 states participate in the State Conrad 20 program, which allows the director of a designated state department of public health to recommend the DOS grant a waiver to a particular physician who is subject to the two-year HRR on the basis of the public interest. The physician must pledge to practice primary health care for 3 years in a facility located in a health professional shortage area (HPSA). Each state may have its own definition of primary care, restrictions on subspecialties or other specific requirements. Once the state health department approves the waiver request, it is forwarded to the DOS. Upon approval, DOS will forward it to INS.

One recent approval for The Law Office of Sheela Murthy came through the Georgia Conrad 20 program. Georgia considers primary care physicians to be those who have residency training in family practice, general internal medicine, general pediatrics, obstetrics, or general psychiatry. Physicians with other sub-specialties or fellowship experience are not considered primary care physicians, but will be evaluated by the policy committee on a case-by-case basis. Our client did have a subspecialty but was nevertheless approved by the committee.

The physician must also submit a "No Objection" letter from her/his embassy in Washington D.C. or the home country. This letter contains specific language, differentiating it from other types of No Objection statements such as those used for the simplest type of waivers mentioned above. The physician must submit a contract declaring that s/he will work in the underserved area for a minimum of 3 years, at least 40 hours a week, as a primary care physician. Georgia states that contracts may not include non-compete clauses and must include a statement verifying that, should the physician leave before the end of the 3-year term, s/he will pay the employer $250,000 as a liquidated damage clause. Complete documentation and evidence must be submitted, confirming that the area is designated as HPSA and outlining the facility's efforts to recruit physicians.

The Law Office of Sheela Murthy has had successful State Conrad 20 cases in several states. Each has been subject to slightly different regulations.